Reporting restrictions for children in criminal cases

Introduction 

Being named in the press can be an extremely damaging and intrusive experience for many children and their families. Children involved with criminal proceedings may be unconcerned about being identified at the time and only realise the significance years after the publication, by which time it is too late. Once named, it is very difficult to undo the damage.1

Most children appearing before the criminal courts will be the subject of reporting restrictions which prevent the publication of their name, or other details that are likely to lead to their identification. However, there are circumstances where such reporting restrictions are not put in place. It is incumbent on any professional involved in a case, particularly the lawyer for the child, to check that the appropriate reporting restrictions are in place, or at least that they have been properly applied for and considered by the court.

Summary of this guide

A brief summary of this guide is as follows. The guide first considers the powers or duties the courts have to make orders restricting reporting, publicity and access to legal proceedings involving a child:

• while there is no statutory provision for precharge anonymity, Article 8 of the European Convention on Human Rights (ECHR) will normally prevent disclosure of the fact that a child is under criminal investigation for an offence
• there are automatic reporting restrictions for any child concerned in proceedings in a youth court, and certain other contexts, in s49 of the Children and Young Persons Act (CYPA) 1933
• a court has a power to make a lifelong reporting restriction order under s45A of the Youth Justice and Criminal Evidence Act (YJCEA) 1999, for a victim or witness; that power does not apply to a defendant
• the adult magistrates’ court and the Crown Court have a power to make a reporting restriction order under s45 YJCEA 1999 for any child before them
• a court has a power in s39 CYPA 1933 to order reporting restrictions for children in civil cases, including in applications for civil orders, including criminal behaviour orders or injunctions for anti-social behaviour
• where a certain matter is not mentioned in open court, a court may order that the restricted information may not be published by the media in connection with the proceedings, by s11 of the Contempt of Court Act (CCA) 1981
• a court may order that certain matters are not reported until the end of proceedings, by s4(2) of the CCA 1981
• courts have a power by virtue of s6 of the Human Rights Act (HRA) 1998 to make orders restricting reporting, including life-long anonymity orders, if required by Article 2 ECHR (the right to life), Article 3 (the prohibition of torture), and/or Article 8 (the right to respect for privacy).

Where the court has a power to restrict reporting, then it should normally apply a specific test, which is considered next by this guide. In summary, the court should carry out a fact-specific balancing exercise, weighing up harm which will be caused by the child’s identity being reported on the one hand, against the harm that will be caused by prohibiting reporting, including the principles of open justice and freedom of expression, on the other. When the child’s rights under Article 8 ECHR, and/or those of the media under Article 10 ECHR, are engaged, essentially the same test should be applied. A considerable range of factors may be relevant, and it is important for a practitioner representing a child to obtain evidence to prove the adverse impact of the child’s identity being reported.

The procedure for making an application for reporting restrictions is considered next. Appeals are then explained. The effect of turning 18 is discussed at the end of the guide.

Key principles

Welfare of the child and prevention of offending

Courts have a duty under s44 CYPA 1933 to have regard to the welfare of any child before it. The court must also bear in mind the principal aim of the youth justice system, which is to prevent offending by children and young persons.2

Open justice

‘Open justice’ is a fundamental principle of the CJS in England and Wales: that everything that happens in the courts is public. There is a wealth of case law supporting the importance of the public accessing court proceedings, and the press’s right to report on it. This principle includes publicly naming those coming before the courts, perhaps best summarised by Lord Sumption in the Supreme Court, that it is important to bear in mind that:3

Pre-charge anonymity

There are no statutory protections for children (or indeed adults) to prevent their name being published in connection with an offence before they are charged with an offence. Section 44 YJCEA 1999 – which provides for an automatic restriction prohibiting the publication of any matter likely to identify a person under 18 who is the subject of a criminal investigation – has not yet been brought into force. Automatic restrictions in the youth court only kick in once criminal proceedings are commenced, which is usually considered to be once the child is charged with an offence.

However, disclosure of the fact that a child is under criminal investigation for an offence, but has not yet been charged for it, normally interferes with their right under Article 8 ECHR. It will be unlawful unless justified, as set out in ZXC v Bloomberg LP.5

There have been some cases where a child who is arrested but not charged with an offence has been named in the press. The only way to prevent this is to obtain a civil injunction preventing the identification. In practice this can prove difficult, mainly due to time constraints and because often it is not known that the child will be named until after the fact. However, the police do not routinely release the names of those arrested for offences, especially when those arrested are children, and the media may choose not to publish such material in line with their own press codes. The Editors’ Code of Practice,6 which is monitored by the Independent Press Standards Organisation (IPSO), provides some guidance about considering
the welfare of children7 and indicates that children under 18 should not be named after arrest but before appearing in the youth court unless their name is already in the public domain, or consent has been given.8 That does not apply to children appearing in the Crown Court.

There have been a number of cases in which the names of the defendants have been released somewhere on social media. However, the courts have recognised that the fact that some people may know the defendant’s name is not, in itself, a reason for their name to be disseminated much more widely: R (Y) v Aylesbury Crown Court.10

Youth court

Child defendant 

There are automatic reporting restrictions for a child charged with an offence who appears before the youth court under s49 CYPA 1933. This provision provides that:

The reference to a ‘child or young person concerned in proceedings’ in s49(1) covers a child defendant. These automatic reporting restrictions will not apply if the child is in court for a civil injunction, such as a CBO (as discussed below).

Proceedings in the youth court are not open to the general public.11  However, ‘bona fide representatives of newspapers or news agencies’ are permitted to attend.12 They are also able to generally report upon the proceedings, subject to the restrictions on identifying the defendants and any other restrictions which apply (such as, for example, restrictions on identifying victims of sexual assault under the Sexual Offences (Amendment) Act 1992).

Section 49 CYPA 1933 continues to apply throughout the trial and sentence while the matter remains in the youth court unless specifically lifted by the court. The court has the power to lift the reporting restriction once the child has been convicted, under s49(4A), which provides that:

That power can only be exercised after hearing representations from the parties.13  The key test is whether lifting such restrictions would be in the public interest.

Section 49(5) CYPA 1933 provides for additional circumstances where it is permitted to lift reporting restrictions prior to the defendant being found guilty. These are very limited: they are where the defendant is unlawfully at large in respect of a serious offence and needs to be found, or where it would cause an injustice to the defendant not to be named.

Unless the court lifts the reporting restrictions under one of these provisions, the restrictions will remain in place until the defendant’s 18th birthday. At that point they cease to apply,14 even if the case is mid-trial. It may be possible to impose further restrictions after this point in some cases, as set out below.

Appeals to the Crown Court

The reporting restrictions in s49 CYPA 1933 extend beyond the youth court when a youth court hearing is appealed (either directly to the Crown Court or by way of case stated) and to proceedings on appeal for breach/revocation/amendment of a youth rehabilitation order.15

However, the automatic prohibition on public attendance at youth court hearings does not continue in an appeal. Practitioners can apply to have an appeal held in private. The Crown Prosecution Service (CPS) guidance on reporting restrictions advises that prosecutors should make such an application unless the appeal concerns a matter of law of general importance.16

Child victim or witness

Reporting restrictions also apply automatically to any child who appears in the youth court as a victim or witness in proceedings as they are ‘concerned in proceedings’ under s49 CYPA 1933. Again, the automatic restrictions under s49 CYPA 1933 will cease to apply on that person’s 18th birthday. However, for child victims or witnesses, a court has a specific power to make a lifelong reporting restriction order under s45A(2) YJCEA 1999.

Section 45A YJCEA 1999 sets out the limited statutory criteria for when a lifelong order can be made at s45A(5):

The relevant factors the court must consider when exercising its power under s45A YJCEA 1999 are set out at s45A(6) and (7), and include considering the welfare of the child, the views expressed by that child, the interests of justice as well as the public interest in avoiding substantial restrictions on reporting.

The CPS will usually be responsible for applying for a lifelong order for a child victim or witness if they do not want to be identified once they have turned 18. The order, if granted, is usually permanent and will remain in place if no further order is made. The order may be revoked by the court or any appellate court17 and can also be lifted or varied through an excepting direction in some circumstances.18

Adult magistrates’ court and Crown Court

Child defendant

A child may appear before the adult magistrates’ court or the Crown Court if jointly charged with an adult or if remanded overnight at the police station and brought before a court where no youth court is sitting.19 Section 49 CYPA 1933 only automatically applies in the youth court, so in either of these scenarios the main way to protect a child’s identity is for the court to make a discretionary reporting restriction under s45 YJCEA 1999.

Section 45 YJCEA 1999 provides as follows:

In deciding whether it is in the public interest, the court must have regard to the matters in s52(2) YJCEA 1999, namely:

Section 45 orders are discretionary and may be lifted at any point in the proceedings.20

Section 45 YJCEA 1999 came into force on 13 April 2015 and replaced the previous discretionary power to make reporting restrictions under s39 CYPA 1933. There is a large body of case law under s39 CYPA 1933 which continues to be relevant and provides guidance for applications made under s45 YJCEA 1999, as confirmed by R v H21 (see discussion
below). In summary, in deciding whether to make an order, the court should balance the harm in doing so, against the harm in not doing so, giving proper weight to the principle of open
justice.

It may be prudent for the child’s representative to make an application for an order as soon as a case is sent to the adult magistrates’ court or Crown Court.

Child victim or witness

As with child defendants, child victims or witnesses to cases in the adult magistrates’ court or Crown Court are not covered by automatic reporting restrictions, and a discretionary order (under s45 YJCEA 1999 or otherwise) would need to be sought on their behalf. CPS guidance indicates the prosecutor will typically make an application under s45 on behalf of a child victim or witness if either the child requests it or the prosecutor thinks it would be in their best interests.22 Lifelong anonymity orders under s45A can also be sought outside the youth court (see above).

Civil cases and criminal behaviour orders

Section 49 YJCEA 1999 does not apply to applications for civil orders, including CBOs or ASBIs. Nor do s45 or s45A YJCEA 1999, as those only apply to criminal proceedings. However, s39 CYPA 1933 (the precursor to s45 YJCEA 1999) does still apply and gives a discretion to make reporting restrictions.

This provision gives a court a discretion to impose reporting restrictions in any civil hearing, including the initial application for an injunction or for a breach of an injunction. Proceedings for breaches of a CBO are ‘criminal proceedings’ so will be covered by s45 YJCEA 1999.

Other powers to prevent reporting under the Contempt of Court Act 1981

The court can make various orders preventing information from being referred to in open court. Under s11 CCA 1981, the court may then order that that information should not be published by the media in connection with the proceedings. This power may be used to prevent the publication of a name of a witness, whether a child or adult, in connection with a court case where that person has been allowed to give evidence anonymously.

This provision will not apply to the name of a child defendant, as the court has no power to prevent the defendant’s name from being given in open court and therefore s11 CCA 1981 cannot apply to it. It may apply to other matters concerning the defendant, such as their address, where the court has ordered that not to be mentioned in open court. Under s4(2) CCA 1981 the court may also make an order that the publication of any matter is postponed where that is necessary to avoid risking substantial prejudice to the administration of justice in those proceedings. This is routinely used in criminal trials where there is press interest, to prevent reporting prejudicial material during the trial itself.

It is uncertain whether this power may be of use in the case where a defendant turns 18 mid-trial, to prevent the sudden identification of the defendant during the trial process. If it were to be used in this way, the court could only make the relevant order if satisfied that naming the defendant would risk substantial prejudice to the administration of justice, and then publication would only be prevented before the end of the trial.

Anonymity under the Human Rights Act - applications in the High Court

A court has a power under s6 HRA 1998 to grant anonymity where that is required in order to comply with a right under the ECHR right.26 The most relevant rights are Articles 2, 3, 8 and 10. This is usually used by the High Court for defendants who have turned, or are about to turn, 18 and therefore for whom there is no other power to be granted anonymity. So far, this has been used sparingly. It is sometimes described as the Venables jurisdiction, and is usually made contra mundum (against the world).

Article 2 (right to life) and Article 3 (protection from inhumane and degrading treatment)

If there is a real and immediate risk (a) to a person’s life or (b) of serious harm as a result of not being granted anonymity, then the positive duties under (a) Article 2 or (b) Article 3 ECHR respectively arises. Those duties require the authorities (here, the court) to take all reasonable steps which might be expected to avoid that risk. Although that is a qualified duty, it appears that in practice that if Article 2 or Article 3 is engaged, it would inevitably mean granting anonymity, regardless of the interests protected by Article 10 ECHR or other
interests.

There is an ongoing debate about this.27 The most recent High Court decision dealing directly with anonymity for child offenders followed the binding decision of the Divisional Court in RXG v Ministry of Justice28 and held that where there is a real and immediate risk of serious physical harm or death to the applicant, there was no question of that risk being balanced against the media’s Article 10 interests.29

Article 8 (private life)

Naming a child may interfere with the child’s rights under Article 8 ECHR. Whether it actually does or not depends on the particular circumstances of the case. If there is an interference with Article 8, then the question of whether anonymity is required by Article 8 will depend on essentially the same balancing exercise as deciding whether anonymity is justified under the common law.

The starting point is the fundamental principle of open justice: everything that happens in the courts is public. In deciding whether a restriction on open justice by anonymity is justified, the court has to carry out a fact-specific balancing exercise. Central to the court’s evaluation would be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose – and, conversely, any risk of harm which its disclosure might cause to the individual concerned, to the maintenance of an effective judicial process or to the legitimate interests of others.30

Overview

As noted above, the court has several discretionary powers to grant anonymity, including under s45 YJCEA 1999, and by reference to Article 8 ECHR. The only automatic reporting restriction is under s49 CYPA 1933, which applies in the youth court where a child is charged with an offence, and even then the court has the discretion to dispense with it (see further below). Where the court has a discretion as to whether or not to grant reporting restrictions, it is required to carry out a balancing exercise, weighing up harm which will be caused by the child’s identity being reported on the one hand, against the harm that will be caused by prohibiting reporting, including the principles of open justice and freedom of expression, on the other.31

While this is a fact-specific assessment in each case, it is unusual for a child to be named during criminal proceedings. Even where a child has been named prior to being arrested or where children’s names have been reported on social media, these factors have not successfully undermined the arguments to anonymity during the proceedings. This reflects the general acceptance that, ‘[p]rior to conviction, the welfare of thechild or young person is likely to take precedence over the public interest’: R (Y) v Aylesbury Crown Court.10

The Judicial College guidance ‘Youth defendants in the Crown Court’ confirms this approach:32

The balancing exercise

As set out above, s45 YJCEA 1999 has now replaced s39 CYPA 1933 in criminal proceedings, but the case law on discretionary reporting restrictions under s39 largely continues to apply.

When considering an application for a reporting restriction, the relevant test remains as set out in R (Y) v Aylesbury Crown Court:33

Subsequent case law indicates that the following general approach should be taken to discretionary decisions whether to impose restrictions to public access to proceedings, including anonymity:34

1. The court must conduct a fact-specific balancing exercise, and decide whether the harm caused by the child being named (which may include the welfare of the child) outweighs the harm caused by granting anonymity (including the extent of the interference with the fundamental principal of open justice and any interference with Article 10 ECHR). If so, anonymity will usually be granted.
2. An intense focus on the comparative importance of the specific rights being claimed on each side of the balance in the individual case is necessary before the ultimate balancing test is carried out.
3. The court may impose a restriction only if it is necessary: it should be the least restrictive measure that will prevent the relevant harm.

Potentially relevant factors

Below is a list of potentially relevant factors in discretionary decisions on reporting restrictions. This list is not exhaustive. Practitioners should be alert to specific and individual issues. If the child is involved in other proceedings, such as in family or immigration courts, those may need to be considered as well.

Sentencing Council Guidelines

Courts have a duty under s44 CYPA 1933 to have regard to the welfare of any child before it. The extent of any adverse impact on the child’s welfare, caused by their identity being reported, is a question of fact in the particular case. However, in McKerry v Teesdale and Wear Valley Justices,35 Lord Bingham explained that this duty was the reason why children, unlike adults, will often not be named in criminal proceedings:36

Article 8 ECHR

Article 8 (right to respect for private and family life) may be infringed by reporting of a child’s identity in connection with criminal proceedings. For example, it may be infringed if reporting has an adverse impact on the child’s psychological integrity, undermines their welfare, development or future career prospects, or causes specific other harms.

Rehabilitation of the child

When dealing with child defendants, there is a much greater focus on rehabilitation than with adults. The CPS states that a specific focus of sentencing is on rehabilitation and the welfare of the child.37 The UN Committee on the Rights of the Child makes it clear that focusing on rehabilitation over other criminal justice objectives is necessary to protect the child’s best interests – and is therefore relevant to any consideration of Article 8 ECHR and Article 3 of the UN Convention on the Rights of the Child (UNCRC).38 The CPS’s guidance also recognises that ‘[i]dentification of a youth may be detrimental to his own rehabilitation and that of other young people related to him or detained with him’.39 While any reporting restrictions are ancillary to the sentence, it makes little sense to undermine any rehabilitative aims of sentencing by naming the child.

In RXG v Ministry of Justice28 (an application for an injunction prohibiting ongoing reporting; see below) expert evidence was adduced as to the defendant’s ability to reintegrate into the community and to continue to rehabilitate following his sentence and how that would be impacted by his identity being known. The court granted the injunction and cited the Sentencing Council’s guidelines on ‘Sentencing children and young people’, including the following:40

The potential impact of a child’s identity being known on their ability to re-integrate into society will be enhanced by the ease with which future employers or any member of the public could become aware of a court case by googling the child’s name. Further, publication may impact the child’s own sense of identity, how they view themselves and how they are viewed by their peers, which may of course affect their efforts to rehabilitate.

An argument based on the risk to the child’s rehabilitation will ideally be supported by specific concerns about the danger of publication. At the time of his trial, RXG was the youngest ever convicted terrorist in the UK, having committed the offences when he was 14 years old. Expert opinion made clear that his rehabilitation and social re-integration would be jeopardised if his name was published. Arguments were also made that naming him could turn him into a ‘poster boy’ for Al Qaeda and make him more likely to be re-recruited or re-radicalised. Similarly, courts may be more sympathetic to making reporting restrictions for children who are attempting to extricate themselves from gangs. In C v Winchester Crown Court [2014] EWCA Crim 339, the court used the fact of the child’s lengthy criminal history as a reason for imposing reporting restrictions, as there was a powerful public interest in his rehabilitation.

The impact on the child’s mental health or other vulnerabilities

The potential impact on the child’s mental health of having their name published will likely warrant making a reporting restriction. In D and F v Persons Unknown,41 evidence from psychologists about the risk of both self-harm and suicide of the two young defendants in that case was crucial to the finding that Article 2 and 3 ECHR were engaged and thus that a lifelong anonymity order should be made. The court stated that establishing such a risk would depend on the quality of the evidence. A person’s fear of giving evidence without anonymity may itself justify an order. However, that fear is likely to be of much greater weight if it is supported objectively by evidence: Re Officer L.42

A child may have particular relevant vulnerabilities which would be exacerbated by publication of their name. The CPS guidance refers to ‘looked after’ children as one such category.43

Risk of harm

In RXG, the court stated:44

Therefore the risk to life and/or risk of harm to the individual can weigh in favour of a reporting restriction, even if the risks are not so high that the rights under Article 2 or 3 are formally engaged.

Danger of retribution

A danger to the child from others is relevant. That danger could be from other inmates, if the child is in custody or in the community. The danger of retribution was, and remains, a primary concern in providing the child killers of James Bulger with new identities. Whilst this will usually only be a factor in high-profile cases, it may also be an issue in cases that have attracted local attention.

Even if a child is receiving a custodial sentence, this will not necessarily provide protection and may even place a burden on the custodial setting whose duty it will be to keep them safe. That may lead to the child having to spend time in isolation for their own safety.

Effect on others

Other children may well be impacted by a decision to publish a defendant’s name, including family members of the defendant, other children in the proceedings, and also other children at secure establishments. There have been issues when high-profile offenders have been detained in a custodial setting and press have camped outside, impacting all the children detained there. In R v Cornick (William),45 the judge specifically ruled that evidence about the impact on the child defendant’s family was not relevant.46That is because the legal exercise, as set out above, involves weighing up the rights of the child themselves as against the rights of the press and public. However, Mrs Justice Yip DBE did rely on the impact on the defendant’s younger siblings in her reasons for maintaining the order under s45 YJCEA 1999 for the teenager convicted of the murder of Ava White at Liverpool Crown Court on 11 July 2022. The judge commented: ‘[T]here are real and immediate concerns for the welfare of the defendant and his younger siblings if his identity becomes more widely known.’47

Open justice and the rights of the media to report proceedings

As noted above, open justice is of fundamental importance and will tend to be given considerable weight. Similarly, the courts place a high value on the right to freedom of expression in Article 10 ECHR.

By way of example, Lord Judge in R v Croydon Crown Court ex p Trinity Mirror plc and others stated:48

The court will normally consider that the ability of the media to report the name of a defendant is an important matter.50 However, this is not inevitable and depends on the particular facts. There is often a lower public interest in the publication of the name of a witness or victim.

Seriousness of the crime

It is usually accepted that the more serious the crime, the stronger the public interest in knowing the identity of the offender. This can be a factor in favour of naming a child after conviction.

However, anonymity may be granted even in cases of serious crimes. In R (Rai) v Crown Court at Winchester,49 the court took into account the countervailing public interest in the young man being rehabilitated, which would be more likely if he was not named. Equally, in RXG v Ministry of Justice,50 the High Court considered an injunction for a young man who was at that time the youngest person to be convicted of terrorist offence. Despite the seriousness of his offending, the impact on him and his rights still outweighed any public interest in
reporting his identity. The seriousness of the crime and level of public interest is therefore in no way definitive.

International law is not directly applicable in the UK courts. However, it may be relevant, for example if a child’s rights under Article 8 ECHR are engaged.51 The following international law provisions are worth noting:

1. Article 3 UNCRC states that ‘the best interests of the child’ must be ‘a primary consideration’ in all actions concerning children, including those undertaken by courts of law.
2. Article 40 UNCRC specifically provides that children in criminal proceedings should have their privacy protected:

3. The UN Committee on the Rights of the Child has expanded on the principle in Article 40 UNCRC in General Comment No 24 (2019) on children’s rights in the child justice system.52 The Committee states:53

4. A child’s right to privacy, including to anonymity in the criminal justice system, is reiterated in various forms in other international instruments and guidance including guidelines 6
and 7 of the ‘Council of Europe guidelines on child-friendly justice’,54 and rule 8 of the ‘UN Standard minimum rules for the administration of juvenile justice’ (‘the Beijing Rules’).55

Evidence will be necessary to support applications for reporting restrictions (or to oppose their removal). In most cases, that can be put before the court from professionals or people affected in the form of witness statements or expert reports in the usual way.

The following individuals and organisations may provide evidence or a relevant opinion on the impact on the child of being named:

1. Expert psychologists/psychiatrists, especially if reports have been obtained during the trial or there is a concern about the mental health or vulnerability of the child.
2. The YOT, who will usually be considering the rehabilitation of the child in any pre-sentence report. The YOT can be asked to consider the effect on the child of lifting any reporting restrictions, considering both the impact on their welfare generally and also how it may affect their rehabilitation and any work YOT is planning to do with the child. These reports may also gather evidence from other professionals working with the child.
3. Parents or other family members, including foster parents.
4. The local authority, if they have responsibility for the child. If the child is a ‘looked after child’ (and any child who is remanded acquires looked after status), then social workers or other professionals who know the child may be able to assist the court as to the impact of publication on the child’s welfare. In some cases where the local authority has parental responsibility, it has applied to become a party to proceedings, so as to instruct counsel to make oral submissions (in addition to providing written evidence): see reference in D v Person Unknown.56
5. Custodial establishment where the child is being held, if remanded.
6. Any other professional working with the child, including teachers. The above list is not exhaustive, and other professionals, or indeed others who know the child, may be well placed to assist. CPS guidance also suggests that the police or governor of the secure establishment where the child is being, or is likely to be, held, should be notified to gain their views on naming the child.57

Although the court has a discretion to dispense with the automatic reporting restrictions, it is very uncommon for the youth court to choose to lift reporting restrictions. In McKerry v Teesdale and Wear Valley Justices,58 Lord Bingham stated that the court’s powers to dispense with anonymity under s49(4A) CYPA 1933 ‘must be exercised with very great care, caution and circumspection’ and it ‘would be wholly wrong for any court to’ use this power as an ‘additional punishment’ or as a ‘naming and shaming’ exercise.59

This has been expanded on further, most recently in KL v R60 where the Court of Appeal summarised the relevant factors when considering making an exception to a reporting restriction as follows:61

These are similar considerations to the balancing exercise undertaken under s45 YJCEA 1999, or s39 CYPA 1933, albeit with the balance more decisively in favour of retaining protections for children where they have already been granted.

Where reporting restrictions apply automatically, those representing children can remind the court of the relevant power and ensure that the restrictions are put in place.

Otherwise, the Criminal Procedure Rules (CrimPR) Part 6 apply to all reporting restrictions. The court can make, vary or lift a reporting order on application, or on its own initiative.62 If an application is made, the representative should notify the other parties in advance, and comply with the requirements set out in CrimPR 6.4(3).

The CrimPR provide that orders can be made with or without an oral hearing but that any party directly affected should be afforded the opportunity to make representations.63 This may include representatives of the media, the prosecution, the defence or others that might be concerned with the child’s welfare, such as the local authority and/or the establishment where the child is living. Anyone who is affected and wants to make representations must comply with the directions in rule 6.7. The representatives of a child defendant will need thorough evidence about the impact of reporting restrictions (see above).

Overview

Where a reporting restriction is not made, or is lifted, and the child intends to challenge that decision, the decision may be stayed pending an appeal – see, for example, Markham v R.64 It will therefore be vital to inform the court of the intention to appeal, or at least the intention to consider an appeal, so that the names are not printed in the press prior to any such challenge.

Judicial review

Challenges to decisions not to grant reporting restrictions are usually conducted by way of judicial review. There is no ability to directly appeal the discharge of an anonymity order under s45 YJCEA 1999, so the only means of challenge is by review in the High Court: see R v Lee (a minor)65 and R v Aziz.66 

In KL v R60 the Court of Appeal confirmed that both orders made under s45 YJCEA 1999 and under s39 CYPA 1933 could be judicially reviewed. In addition, although there was no freestanding jurisdiction to appeal a s45 order, such an order could be considered as an ancillary matter if leave to appeal has been granted. Consequently, if leave is declined, there is no power to revisit reporting restrictions made under s45. The court also concluded that the Divisional Court was better placed to address reporting restrictions, including through allowing interested parties such as the media to be involved and because such challenges could also be brought by that mechanism by victims and witnesses as needed.

It is less clear if an appeal against a decision of an adult magistrates’ court needs to be conducted by way of judicial review. Certainly, that was the route of appeal used in R (A) v Lowestoft Magistrates’ Court.67 However, s108 Magistrates’ Courts Act 1980 provides for an appeal against sentence which is defined (under s108(3)) as ‘any order made on conviction’. That might be thought to include an order to remove or vary a reporting restriction.

Appeals by the press

A member of the press (or other interested party) who wishes to appeal against a reporting restriction made in the Crown Court can appeal to the Court of Appeal under s159 of the Criminal Justice Act 1988.

Reporting restrictions, whether made under s39 or s49 CYPA 1933 or s45 YJCEA 1999, will expire when the child turns 18. This is set out directly in the text of s49 CYPA 1933 and s45 YJCEA 1999, and has been confirmed as the position under s39.68 The only statutory provision for lifelong anonymity orders for children in criminal proceedings, in s45A YJCEA 1999, applies only to child victims and witnesses, and excludes defendants.

The only way to protect the identity of a defendant becoming known once the defendant turns 18 is to obtain a civil injunction from the High Court. That power has been recently reconfirmed by the Divisional Court in RXG v Ministry of Justice.69 These injunctions are colloquially known as an exercise of the ‘Venables jurisdiction’, from the high-profile case in which the power was used. In RXG, the court described the power as ‘exceptional’. It granted the anonymity order for the (now adult) offender on the basis of the risk to his rehabilitation, his mental health and the fact he was a child at the time of the offending and had been radicalised by others. The protective duties in Article 2 or Article 3 ECHR were not engaged. The decision was based on balancing his Article 8 rights against the Article 10 rights of the media, and a decision that the former outweighed the latter.

The re-establishment of the principles underlying anonymity injunctions has already resulted in more applications for such injunctions being made: from the three examples of exercise of the Venables jurisdiction since 2001, there have now been three such applications in the past three years.70

The fact that a defendant is very likely to be named upon turning 18 has been used as an argument in favour of naming the defendant at the close of the trial, as the defendant will be named anyway.71 However another case pointed out the importance of not naming a child before he has the ‘burden or benefit of adulthood’.72