Court Reporting 4 - Children and Young Persons in Court Cases and Inquests

Children under the age of 10 have not yet reached the 'age of criminal responsibility' so cannot be prosecuted for crimes as they are considered too young to distinguish between right and wrong. But they may be placed under the supervision of social workers.

The distinction between is a child (under 14) and a young person (14-17) is not important for journalists reporting courts.

In some law, the term juvenile broadly describes anyone under 18.

Most juveniles are dealt with by youth courts, presided over by magistrates or a district judge. Youth courts are usually at magistrates' courts but use smaller rooms to make the defendants and any witnesses under 18 feel less nervous

Parliament decided to shield all children and young persons concerned in proceedings of youth court cases from publicity by banning media from identifying them in any publication referring to their cases while they are under 18. The automatic anonymity is bestowed by the act, which says:

• no matter relating to any child or young person concerned in the proceedings shall, while they are under the age of 18, be included in any publication if it is likely to lead members of the public to identify them as someone concerned in the proceedings. This includes publication of their name, address, school/work, or a still/moving picture.

The definition of witness includes any person called or proposed to be called to give evidence in the proceedings. 

A victim/alleged victim who is dead can be identified because a dead person is not concerned in the proceedings.

Section 49 says publication includes any speech, writing, or relevant programme.

Section 49 anonymity automatically expires when the person whose identity it protected turns 18. Anonymity can be extended beyond 18 in the High Court.

Section 49 allows a youth court to revoke the anonymity before the person it protects turns 18 to allow media to identify them to any specified extent for any of these reasons:

• to avoid injustice - this power is rarely exercised. A youth court could use it to allow a media report of a preliminary hearing to identify a defendant whose lawyer says they want publicity to help trace witnesses. 
• to help trace a child or young person unlawfully at large - a youth court can lift anonymity if asked to do so by the Director or Public Prosecutions to help trace an under 18 unlawfully at large after being charged with or convicted of a violent, sexual, or terrorism offence, or any offence with which a person aged 21 and over could be jailed for 14 years or more. This would let the media name and publish a photo of the person who has failed to answer bail or escaped from secure accommodation and may be a threat to public safety
• In the public interest - if it's satisfied that doing so is in the public interest e.g. if the court feels it would benefit the community to let the media identify a defendant who had committed a notorious crime or was a persistent offender

Before giving its decision, a court must let the prosecution and defence put forward arguments for or against lifting the anonymity.

A youth court which convicts a defendant can, by using Section 49(4A) lift the anonymity if satisfied it's in the public interest to do so.

This can be done if:

• the offending was persistent or serious
• the offending had an impact on a number of people
• it was in circumstances when alerting people to their behaviour would help prevent further offending

There is no automatic ban on identifying anyone under 18 as being concerned in the proceedings of an adult criminal court. But they have discretionary power in section 45 of the act to ban any publication from identifying a specified person as being concerned in the proceedings while they remain under 18 (like the second girl in the Harlow Collinge case).

Anonymity under section 45 automatically expires when the person it protects turns 18. It can only be extended exceptionally beyond 18 by a High Court injunction. A criminal court can revoke a Section 45 order, so removing the anonymity for the relevant person, before they turn 18 or relax the order's scope.

A section 45 order can be made in respect of a defendant, witness, or victim/alleged victim.

A journalist can argue that a restriction which prevents a serious crime's circumstances being reported places an unreasonable burden on the media. They can argue that anonymity should not just be given - there should be a good reason for it.

Section 45A of the act permits these courts and youth courts in particular circumstances to bestow anonymity for a witness or victim/alleged victim aged under 18 for the person's lifetime. 

No matter relating to that person shall, during their lifetime, be included in any publication if it's likely to lead members of the public to identify that person as being concerned in the proceedings.

The act makes clear that this lifetime anonymity cannot be given to a defendant, even if they are also a witness.

So Section 45 is while they are under 18 and Section 45A is lifetime.

The act gives a criminal court discretionary power to ban all publications from including any details likely to identify an individual aged 18 or older as being or having been a witness in the court's proceedings, with the ban lasting for the individual's lifetime.

Section 45A and 46 say that a court can revoke or relax the scope of the order if satisfied it's in the interests of justice to do so, or that its effect is to impose a 'substantial and unreasonable' restriction on the reporting of the case and that it is in the public interest to revoke or relax it.

A person whose identity is protected by a section 46 order can give written consent to be identified in reports of the case. A person protected by section 45A can do this once they turn 18.

Whenever a person is protected by statutory anonymity is willing to waive it, it's good practice to ask the person to state explicitly in the written waiver that they have not been subjected to any interference with their peace or comfort. This helps to remind them to think deeply about waiving anonymity and to protect the journalists and publications in law if the individual later complains about being identified.

People under 18 who are concerned in civil law proceedings, e.g. in the High Court or County Court, as claimants, defendants, or witnesses, or in a Coroner's Court as a witness, can be identified by the media as being involved in the case unless the court specifically forbids it.

This is done through Section 39 and bans publication of name, age, school/work, still/moving picture.

Section 39 says any person who includes in a publication material which breaches the anonymity is liable for the breach. The definition of publication is the same as other acts and the maximum punishment is a fine unlimited by statute.

Section 39 automatically expires when the person turns 18.

It is not valid if the person for whom it's made is not concerned in the proceedings. This means courts shouldn't give a child or young person anonymity merely because, for example, their parent is a defendant in a criminal case.

Orders should not be made under Section 45 of the 1999 Act or Section 39 of the 1933 Act to provide anonymity for a child or young person who is dead.

The aim of an application in this case may be to prevent the media identifying the adult defendant, the argument being that this is necessary to protect their other surviving children from publicity. But neither Section 45 or Section 49 can be used to protect the welfare of any child or young person not concerned in the proceedings of the case - the principle of open justice means a ban on the identification of an adult defendant is rarely justifiable.

Section 45(4) enables a court which has made a Section 45 order to subsequently make an 'excepting direction' to revoke the order completely or vary the scope of its reporting restrictions if the court is satisfied this is necessary in the interests of justice.

Section 45(5) enables a court to make an excepting direction to revoke or vary the order if the court is satisfied:

• the effect of the order is to impose a substantial and unreasonable restriction on the reporting of proceedings
• that it is in the public interest to remove or relax the restriction

Journalists opposing being barred from a criminal court hearing or opposing a reporting restriction can direct the court to guidance issued by the Judicial College. It states: 'The public and the media have the right to attend all court hearings and the media is able to report those proceedings fully and contemporaneously. Any restriction on these usual rules will be exceptional. It must be based on necessity.'

This section says that in considering the public interest when deciding whether a section 45 anonymity should be revoked or relaxed, the court must have regard in particular and as relevant to the interest in the open reporting of crime and matters relating to human health or safety and in the prevention of exposing miscarriages of justice.

Particular arguments that can be made in the public interest against section 45 are:

• deterrence
• the community has a right to know who perpetrated a serious crime and its full circumstances