England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/05/2012

Lord Justice Hooper:

This is the judgment of the court.

1. The claimant was aged 16 years when he committed an offence of simple arson. He was also 16 when, on the day of the trial, he pleaded guilty and was sentenced to an eight months' detention and training order by HHJ The Lord Parmoor for the arson and another matter. The prosecution had offered no evidence in respect of other alleged arsons which, if proved, would have shown, on the prosecution's case, a serious campaign of "revenge arson" against a number of individuals.
2. The arson to which the claimant belatedly pleaded guilty involved the claimant and some friends setting fire to a van which was being converted at a garage. They caused £600 of damage, principally smoke damage, to the interior of the vehicle. The vehicle was worth £1,500 and was not written off.
3. Following sentence an application was made by a local newspaper, the Bucks Free Press published by Newsquest Media Group Ltd ("Newsquest"), to vary an order apparently made earlier^[1] pursuant to section 39 of the Children and Young Person's Act 1933 ("the 1933 Act") which forbade the publication of the details which would identify the claimant. The proposed variation was requested in relation to the arson matter only. The application was actively supported by the Thames Valley Police. The application appears to have been made in the absence of the claimant, although that is not a ground of challenge.^[2]
4. Section 39(1) provides:

In relation to any proceedings in any court . . . the court may direct that –

(a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person [by or against] or in respect of whom the proceedings are taken, or as being a witness therein;

(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

except in so far (if at all) as may be permitted by the direction of the court.^[3]

5. Section 39 orders will often be made in favour of persons other than a defendant, but, in this case, we are concerned with an order in favour of a defendant.
6. Section 39 is to be compared with section 49 which prohibits publication of material which will reveal the identity of a child or young person concerned in proceedings in the Youth Court, unless permitted by court order.
7. The editor of the Bucks Free press wrote a letter to the judge:

"We write to respectfully ask for you to consider removing an order which currently prohibits the identification of a 16 year old defendant.

Our request relates to a case number ... and associated cases, of the sentencing of Iftikar Aslam and the 16 year old [claimant], who have both pleaded guilty to charges of arson.

There is currently a Section 39 reporting restriction preventing the naming of the 16 year old.  We are writing to respectfully request that the order be lifted so that the youth can be identified by the press following his sentencing.

Over the course of the last year there have been a number of serious arsons in the Castlefield area of High Wycombe, which have naturally caused great concern to the people living there.

We believe that there is an overwhelming matter of public interest in naming the youth because of the impact this arson, and several others in Castlefield, have had on the community.  We believe this case, and the identification of any offenders connected with it, could act as a deterrent to others from committing such a grave offence.

We have been made aware that Thames Valley Police also wish the youth's identity to be released as the police force takes the view that doing so would be in the public interest."

8. A letter from Chief Inspector Colin Seaton to the judge stated:

"I would like to support the application by the Bucks Free Press to lift the order under section 39 of the Children and Young Persons Act 1933 which bans the naming of the 16 year old in case number ... which is the sentencing of Iftikar Aslam and the 16 year old for arson.

I believe it is necessary to publish the name for two reasons.  Firstly to address community concerns surrounding the investigation and the subsequent court proceedings.  Secondly, to support the investigation of more than 100 crimes linked to this case and give potential witnesses the confidence to come forward.

Thames Valley Police in Wycombe has held two public meetings to keep the public informed of the investigation.  During both meetings, members of the public have threatened to take matters into their own hands.  In addition, after other incidents of arson in the estate, large groups have attended the scene and made threats to the two accused in this case and their associates.

By naming both offenders and demonstrating they have been brought to justice, I believe the community will be reassured that the matter has been dealt with effectively by the judicial system and the tension in the community will be reduced.

The two individuals in this case have been convicted of one offence of arson.  However, there are still over 100 matters outstanding, which we believe are linked.  By naming these individuals and showing that they have been brought to justice, I believe witnesses who have no confidence in the criminal justice system or who have previously been intimidated will be encouraged to come forward and give intelligence, which could help us solve the outstanding crimes and bring back the community cohesion which once existed."

9. During the course of the application the transcript reveals that "an unknown speaker", probably Chief Inspector Seaton, said that those who have committed the arsons have stayed at the scene and been identified by other persons who have come to the scene. The speaker accepted that those persons may not know where the arsonists live. The judge said, during the discussions, that it was important to gives the claimant's address if his name was to be published so there might be no confusion with a person of the same name.
10. We were told that the appellant had an unusual physical feature which would identify him.
11. The CPS as prosecuting authority took no part in the argument in the Crown Court and have made no oral or written representations in this Court. They have been served with the papers as an interested party.
12. The CPS has published a very useful guidance to prosecutors as to when it might be appropriate to make an application under either section 39 or 49 of the 1933 Act or to make an application to vary an order already made. It is entitled: "Guidance on Imposing and Lifting Reporting Restrictions in cases involving Youths who are convicted" ^[4]. Paragraph 16 states that:

"The prosecutor must always be in a position to respond to any application for reporting restrictions under section 39 and it will never be appropriate to adopt a neutral stance."

Although paragraph 16 is not worded as clearly as it might be, it seems likely that the authors of the Guidance intended the prosecutor to take a stance when an application to vary of the kind with which we are concerned is made.

13. The judge allowed the application in part and varied the order to permit publication of the claimant's name and address but not publication of a photograph or other description of him.
14. It is submitted on behalf of the claimant that the judge's decision was one that no reasonable judge could reach in the circumstances, having regard to the reasons given by the judge. A stay is in place pending the outcome of the application for judicial review.
15. Newsquest, an interested party, was represented not by counsel before us but by Mr S Cohen. Newsquest also provided us with a very helpful skeleton argument and supports the representations made to us in writing and orally by Chief Inspector Seaton.
16. Mr Edmonds asked the judge to give his reasons for the conclusion which he had reached during the course of hearing the application. In response the judge said:

"... it seems to me on the basis of the written applications, that I accept, that this young man's identity is already known to local persons. That there had been meetings with large groups who have identified him as a person – rightly or wrongly – they believe to be guilty of arson and so the suggestion that to prohibit publication of his name to prevent his identity becoming known in the particular circumstances does not stand. The local community are concerned about persons setting fire to cars and it seems to me in those circumstances perhaps to protect him, because the point would be made there is only one offence for which he was responsible at this stage and because his identity is already known and he is – rightly or wrongly – thought to be responsible for any other offences [sic], I will vary the order under section 39 to say that his name and address can be published, but no picture or reference to any physical appearance should be published in any newspaper which is or includes any picture of [the claimant] and that includes any description as: "The boy with this. A boy with that. The boy with the etcetera". Now that has to be drawn up by the court."

17. We have checked this transcript against counsel's note of the reasons and it appears that the judge was saying that the claimant was, rightly or wrongly, thought by persons living locally to be responsible for other offences, by which he meant other offences of arson. To put it another way, the claimant was thought locally to have engaged in a campaign of arson.
18. The judge's reasons for varying the order by allowing the publication of the claimant's name and address but not a photograph or other description appear, from this ruling, to have been two-fold:

i) The claimant's identity is already known to local people;

ii) The limited publication of the claimant's name and address together with the fact that he had pleaded guilty to one arson and sentenced accordingly would give the claimant, on his release, some protection from those who thought him to have been involved in more arsons.

19. It seems to us that neither reason is satisfactory. The fact that a defendant's identity is already known to some people in a locality is not necessarily a good reason for letting a very large number of others know about it.^[5] Secondly, it must be doubtful on the facts of this case whether it was permissible to allow publication in order, in some way, to help the claimant, particularly whilst at the same time letting many people know not only his name but also his address. In any event the judge did not, as he should have done, apply the relevant principles, to which we turn shortly. We would therefore quash the decision on the grounds of an error of law, namely the failure to give adequate reasons to justify the conclusion reached and the failure to apply the proper test.
20. If the decision is quashed for this reason, then, by virtue of section 31 of the Senior Courts Act, we may remit the matter back to the Crown Court for further consideration or substitute our own decision. But we may only do that if, without the error, there would have been only one decision, namely accede to the application or refuse it.
21. Although there have been doubts expressed in the past, it seems clear that this Court had jurisdiction to entertain an application for judicial review of the judge's order, see Archbold, 2012, para. 4-27.
22. Chief Inspector Seaton has made further representations to this Court. He wrote:

"In addition to our initial application to lift the order under section 39 of the Children and Young Persons Act 1933 which bans the naming of the 16 year old in case number ... , I would be grateful if you could consider the following points:

The offender is now 17 years old (he was 16 at the time of sentencing) and his co-defendant for the arson is 19 years old. The case was held at an adult court.

Members of the community named this offender as an arsonist as far back as 2010 although they have been too scared to make written statements or provide evidence. The offender's identity and address is already known within the community, therefore naming him makes little difference to his welfare.

The overwhelming consensus from within the community is that the individuals involved need to be punished for their actions and I believe naming this offender is a significant step towards doing this. We have intelligence that [the claimant] has been boasting that he is responsible for starting fires on the estate, and by openly naming him we can confirm which fire he is responsible for.

To reassure the community a mounted patrol took place on the estate. The horses became a target for the Castlefield gang who were seen throwing stones and other pieces of debris at the horses themselves. Although this incident is not linked to the arsons, the two males seen to have been present are known associates of both Iftikar Aslam and [the claimant] and once again shows how willing the young people of Castlefield are to try and intimidate not only the community but the officers patrolling the area as well. By naming [the claimant], the criminal justice system would be deterring both him and his associates from committing crime in future.

By demonstrating that this offender has been brought to justice we hope to give confidence to victims of the arson attacks and other individuals from within the community, who may have information about the other attacks and are frightened of repercussions to feel confident to come forward with information about the other arsons.

The naming of the offender would not only offer reassurance to the local community that the Criminal Justice system has been effective in bringing the perpetrators to justice, but demonstrate that the police are doing all that they can. This would also disrupt and weaken the strength of the gang that this 16 year old is part of."

23. The officer amplified these representations orally before us. He said that there were some five to ten thousand residents of the Castlefield housing estate and that there were very serious concerns about the some 100 gang related arsons which have occurred over two years. There is a feeling that the police have done very little and the disclosure of the claimant's identity (albeit in relation to one fire only) will assist the police in overcoming the community's fears of the gangs involved and in obtaining the community's support to find those responsible. If the claimant's identity were to be disclosed, the information would be put up on the Force website. The claimant's identity and address is already known within the community.
24. The claimant does not submit that he would be at risk of physical violence if his name became known.
25. We shall now examine how section 39 has been interpreted.
26. In R. v Winchester Crown Court [2000] 1 Cr. App. R. 11 (Div. Ct.), a section 39 case, Simon Brown LJ distilled the following propositions from earlier cases:

i) In deciding whether to impose or thereafter to lift reporting restrictions, the court will consider whether there are good reasons for naming the defendant;

ii) In reaching that decision, the court will give considerable weight to the age of the offender and to the potential damage to any young person of public identification as a criminal before the offender has the benefit or burden of adulthood;

iii) By virtue of section 44 of the 1933 Act, the court must "have regard to the welfare of the child or young person";

iv) The prospect of being named in court with the accompanying disgrace is a powerful deterrent and the naming of a defendant in the context of his punishment serves as a deterrent to others. These deterrents are proper objectives for the court to seek;

v) There is a strong public interest in open justice and in the public knowing as much as possible about what has happened in court, including the identity of those who have committed crime;

vi) The weight to be attributed to the different factors may shift at different stages of the proceedings and, in particular, after the defendant has been found, or pleads, guilty and is sentenced. It may then be appropriate to place greater weight on the interest of the public in knowing the identity of those who have committed crimes, particularly serious and detestable crimes;

vii) The fact that an appeal has been made may be a material consideration.

27. Although there is authority for the proposition that there have to be exceptional circumstances justifying the refusal to make an order, Elias J in R. on the application of T v. St Albans Crown Court and others [2002] EWHC 1129 (Admin) shows why this would be an improper gloss on the language of section 39.
28. A helpful guide to the principles involved in applying section 39 can be found in "Reporting Restrictions in the Crown Court" October 2009, a joint publication by what is now the Judicial College with the Newspaper Society, the Society of Editors and Times Newspapers Ltd.^[6] Both the claimant and Newsquest referred us to the document and it was not suggested that it summarises the law incorrectly.
29. Paragraph 4.2 reads, in part (footnotes omitted):

"There must be a good reason, apart from age alone, for imposing a s39 CYPA order. There is a clear distinction between the automatic ban on identification of children in Youth Court proceedings and the discretion to impose an order under s39 of the 1933 Act. Whereas under s49 CYPA ... there must be a good reason for lifting the order, under s39 the onus lies on the party contending for the order to satisfy the court that there is a good reason to impose it. The appellate courts have emphasised that Parliament intended to preserve the distinction between juveniles in Youth Court proceedings and in the adult courts.

In deciding whether to impose an order under s39 the judge must balance the interests of the public in the full reporting of criminal proceedings against the desirability of not causing harm to a child concerned in the proceedings. The court is required to have regard to the welfare of the child. Where the child is an accused person the court should give considerable weight to the age of the offender and to the potential damage to any young person of public identification as a criminal before having the burden or benefit of adulthood. Any order made must comply with Article 10 ECHR – it must be necessary, proportionate and there must be a pressing social need for it. Age alone is not sufficient to justify imposing an order as very young children cannot be harmed by publicity of which they will be unaware and s39 orders are therefore unnecessary.

Courts may review an order at any time and frequently are invited to do so where a defendant named in an order has been convicted at trial. The courts have recognised that in considering whether to lift an order the welfare of the child must be taken into account, but the weight to be given to that interest changes where there has been a conviction, particularly in a serious case; there is a legitimate public interest in knowing the outcome of proceedings in court and the potential deterrent effect in respect of the conduct of others in the disgrace accompanying the identification of those guilty of serious crimes."

30. Paragraph 4.2 makes it clear that the onus lies on the party contending for an order restricting publication to satisfy the court that there is a good reason to impose it. (See also Lee (1993) 96 Cr. App. R. 188). It would seem to follow that, if a court is considering whether to discharge or vary an order already made, then the party who had obtained the order restricting publication must satisfy the court that there remains a good reason not to discharge or vary it.
31. As paragraph 4.2 also makes clear: the court is required to have regard to the welfare of the child. Section 44 of the Children and Young Persons Act 1933 provides:

"Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person, and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training".

32. The requirement to take into account the welfare of the child or young person reflects the well-established principle that persons under the age of 18 are, in the words of the Sentencing Guidelines Council Definitive Guideline "Overarching Principles, Sentencing Youths":

"3.1 ... unlikely to have the same experience and capacity as an adult to realise the effect of their actions on other people or to appreciate the pain and distress caused and because a young person is likely to be less able to resist temptation, especially where peer pressure is exerted."

33. The Guideline continues:

"3.2 Additionally, in most cases a young person is likely to benefit from being given greater opportunity to learn from mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on the prospects and opportunities of the young person, and, therefore, on the likelihood of effective integration into society." (Emphasis added)

34. The principles applied in sentencing those under 18 are obviously relevant when considering an application under section 39. Publishing the details of a defendant may bring with it the very consequences which the court is seeking to avoid at the sentencing stage.
35. In McKerry v Teesdale and Wear Valley Justices [2001] EMLR 5 (Div. Ct.), a section 49 case, Lord Bingham CJ stressed the need to bear in mind this country's international obligations. He said:

"12 These provisions [sections 39 and 49] of domestic legislation are to be read against a background of international law and practice to which the European Court of Human Rights has recently drawn attention in judgments in T v. United Kingdom and V v. United Kingdom (1999) 30 E.H.R.R. 121. These judgments draw attention to the Beijing Rules adopted by the United Nations General Assembly on November 29, 1985. They are not binding in international law and states are invited, not required, to observe the rules approved. The rules do, however, provide in Rule 8 for protection of privacy and provide:

8.1 The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.

8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.

…

13. The European Court also drew attention to the United Nations Convention on the Rights of the Child 1989. This Convention was adopted by the General Assembly of the United Nations on November 20, 1989 and the Articles do have binding force in international law, binding Member States of the Council of Europe, including the United Kingdom. Article 3.1 of this Convention states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.

14. Article 40 provides so far as relevant:

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's re-integration and the child's assuming a constructive role in society.

To this end … the States Parties shall, in particular, ensure that:

…

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

…

(vii) To have his or her privacy fully respected at all stages of the proceedings.

15. Attention is also drawn to Recommendation No. R(87)20 of the Committee of Ministers of the Council of Europe, which was adopted on September 17, 1987. That Recommendation included the following:

Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("the Beijing Rules"),

Recommends the governments of member states to review, if necessary, their legislation and practice with a view:

...

8. to reinforcing the legal position of minors throughout the proceedings … by recognising, inter alia:

…

the right of juveniles to respect for their private lives;

…"

36. Lord Bingham went on to refer to Articles 8 and 10 of the ECHR and continued:

"17. It is in my judgment plain that there is in a situation such as the present some tension between competing principles. It is a hallowed principle that justice is administered in public, open to full and fair reporting of the proceedings in court, so that the public may be informed about the justice administered in their name. That principle comes into collision with another important principle, also of great importance and reflected in the international instruments to which I have made reference, that the privacy of a child or young person involved in legal proceedings must be carefully protected, and very great weight must be given to the welfare of such child or young person." (Emphasis added)

37. In R v Central Criminal Court, ex parte W, B and C [2001] 1 Cr App R 7 (Rose LJ and Rafferty J) the Court disapproved of the suggested requirement that "very great weight" should be given to the welfare of the child in a section 39 case. Elias J in T examined the various cases and concluded that:

"18. ... the requirement to be cautious and circumspect would not properly describe the court's approach when it is considering an order under section 39 [as opposed to section 49], but in my judgment the need to take great care in the albeit different balancing exercise facing a court in such circumstances is no less important."

38. As we have shown, the document entitled "Reporting Restrictions in the Crown Court" states the court should give considerable weight to the age of the offender and to the potential damage to any young person of public identification as a criminal before having the burden or benefit of adulthood.
39. How then should a court approach an application by a defendant to restrict publication under section 39?
40. The defendant will have to satisfy the court that there is a good reason to impose it. This is probably an evaluative exercise and would not involve the application of any burden or standard of proof (unless perhaps there is a factual dispute). See, for example, O (FC) (Appellant) v. Crown Court at Harrow [2007] 1 AC 249, para. 11.
41. In most cases the good reason upon which the defendant child or young person will rely is his or her welfare. Section 44 of the Children and Young Persons Act 1933 requires the court to have regard to his or her welfare when deciding a section 39 application. Having regard to the mandatory requirement of section 44, it is probably unnecessary to consider Article 8.
42. Because the defendant is a child or young person and not an adult, his or her future progress may well be assisted by restricting publication. Publication could well have a significant effect on the prospects and opportunities of the young person, and, therefore, on the likelihood of effective integration into society. Identifying a defendant in the media may constitute an additional and disproportionate punishment on the child or young person. In rare cases (and not in this case) the child or young person may be at serious personal risk if identified.
43. In reaching the decision upon an application by a defendant to restrict publication under section 39, the court must, in addition to having regard to the welfare of the child, have regard to the public interest and to Article 10 of the ECHR.
44. Amongst the possible public interests is the public interest in knowing the outcome of proceedings in court and the public interest in the valuable deterrent effect that the identification of those guilty of at least serious crimes may have on others.
45. In so far as Article 10 is concerned, in the words of the document entitled "Reporting Restrictions in the Crown Court", any order restricting publication must be necessary, proportionate and there must be a pressing social need for it.
46. The court must thus balance the welfare of the child or young person which is likely to favour a restriction on publication with the public interest and the requirements of Article 10 which are likely to favour no restriction on publication. Prior to conviction the welfare of the child or young person is likely to take precedence over the public interest. After conviction, the age of the defendant and the seriousness of the crime of which he or she has been convicted will be particularly relevant.
47. What the court should do is to identify the factors which would favour restriction on publication and the factors which would favour no restriction. The court may also decide, as the judge did in this case, to permit the publication of some details but not all.
48. If having conducted the balancing exercise between the welfare of the child or young person, on the one hand, and the public interest and the requirements of Article 10 on the other, the factors favouring a restriction on publication and the factors favouring publication are very evenly balanced, then it seems to us, for the reasons given by Lord Bingham CJ in McKerry v Teesdale and Wear Valley Justices, that a court should make an order restricting publication.
49. We now apply this approach to this case.
50. Applying what we have set out in paragraph 42 above, it seems to us that the claimant's welfare would best be served by an order restricting publication.
51. Newsquest and the Thames Valley police submit that it is in the public interest to publish the claimant's name and address for the following reasons:

i) the naming of the claimant would deter others "from committing such a grave offence";

ii) the naming of the defendant is an additional necessary punishment for him;

iii) the naming not just of one offender but of both offenders demonstrates to the community that the police have done all that they could do in the face of a serious problem of gang related arson and intimidation and thus would restore the confidence of the community in the criminal justice system;

iv) the naming of not just one offender but of both offenders would encourage victims of arson attacks and other individuals, who are now frightened of the repercussions of coming forward, to feel confident about coming forward and give information about the some 100 other arsons.

52. It seems to us that each of these reasons given for identifying the claimant are reasons which a court would be entitled to take into account. In so far as (ii) is concerned, Simon Brown LJ appeared to accept in R. v Winchester Crown Court (paragraph 27 above) that not making a section 39 order could be seen as part of the punishment.
53. If the claimant had been convicted of an offence or offences which showed that he was a party to a serious campaign of revenge arson, then it seems to us that a court would not make a section 39 order restricting publication.
54. But that is not this case. The claimant pleaded guilty to one count of simple arson committed when he was sixteen. Balancing the welfare of the claimant with the public interest, it seems to us that the public interest on the facts of this case does not take precedence. Most of the objectives sought by Newsquest and Thames Valley Police can be sufficiently met without naming the claimant.
55. We therefore allow the application and quash the decision.

Note 1   According to Newsquest in its skeleton argument there is confusion about the date and even the existence of the earlier order. The judge proceeded on the basis that there was an earlier order and it is very unlikely that no order had been made at some earlier stage in the Crown Court in relation to the arson proceedings.     [Back]

Note 2   See Crim PR 16.2(3).     [Back]

Note 3   Section 39 was amended in 1999 to exclude criminal proceedings, but the amendment has not been brought into force. See Youth Justice and Criminal Evidence Act 1999, s 48, Sch 2, paras 1, 2.    [Back]

Note 4   http://cps.gov.uk/legal/p_to_r/reporting_restrictions_-_cases_involving_convicted_youths/     [Back]

Note 5   The Thames Valley Police intended to identify the claimant on their website.     [Back]

Note 6   http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/crown_court_reporting_restrictions_021009.pdf     [Back]