Reporting Restrictions - Children and Young People as Victims, Witnesses and defendants
- Role of the Prosecutor
- The tension between Open Justice and Privacy
- Section 49 Children and Young Persons Act 1933: Youth Court
- When reporting restrictions are used, including breach of restrictions: Section 39 Children and Young Persons Act 1933
- Enforcement and Breach of section 39 and section 49 orders
- When an application should be made to lift reporting restrictions: Section 49 Children and Young Persons Act 1933
- When reporting restrictions should be opposed/sought: Section 39 Children and Young Persons Act 1933: Youth Defendants
- Section 39 orders : the test to be applied
- When reporting restrictions should be opposed/sought: Section 39 Children and Young Persons Act 1933: Young Victims and Witnesses
- Annex 1: European Convention of Human Rights
- Annex 2: United Nations Convention on the Rights of the Child
- Annex 3: The United Nations Standard Minimum Rules for the Administration of Justice 1985 (the Beijing Rules)
Role of the Prosecutor
- be familiar with the circumstances where automatic reporting restrictions exist, along with the discretionary powers of the court to restrict reporting and to restrict public attendance at hearings. The legislation and guidance surrounding reporting restrictions is helpfully summarised in "Reporting Restrictions in the Criminal Courts" (October 2009) a joint publication by the JSB, the Newspaper Society, The Society of Editors and Times Newspapers Ltd.;
- draw the court's attention to these provisions in open court thereby enabling the court to make appropriate orders and give advice to the media;
- understand the rights enshrined in:
- assist the court to respect and protect the rights of victims, witnesses and defendants;
- where automatic reporting restrictions do not arise, seek reporting restrictions only when the public interest and the right to receive and impart information is outweighed by the rights of victims, witnesses or defendant. Examples include restricting the reporting of the identity of a young defendant who is being tried in an open court only because he is jointly charged with an adult; or where a young witness fears that public identification will threaten their safety. Any application should seek restrictions for such period as is necessary to meet the interests of justice;
- where automatic restrictions do occur, only seek the lifting of these after conviction in the narrowly prescribed circumstances set out in this guidance;
- comply with and encourage compliance by other parties and interested persons with Part 16 of the Criminal Procedure Rules (CPR);
- provide a draft order to the court when an order is sought to ensure that the requirements of the Consolidated Criminal Practice Direction are met. Part 1 paragraph 1.3 requires any order made to be recorded in some permanent form, by committing it to writing, as soon as possible after it is made and making clear:
- its precise scope;
- if applicable, the time at which it shall cease to have effect; and
- the specific purpose of the making of the order.
The tension between Open Justice and Privacy
The starting point is that the administration of justice should occur in public so that justice is seen to be done. Cases should be heard in open court so that the public can access and the media can report proceedings. Courts are public authorities for the purposes of the Human Rights Act 1998 and must not act in a way that is incompatible with a right guaranteed under the European Convention on Human Rights (section 6 Human Rights Act 1998).
The principal exception to the open justice principle relates to youth court proceedings, which by statute are not open to the public. Section 49 of the Children and Young Persons Act 1933 (CYPA 1933) places an automatic restriction on reporting that identifies or is likely to identify any person under the age of 18 who is concerned in youth court proceedings as a victim, witness or defendant.
Additionally, there is a discretionary power under section 39 CYPA 1933 to restrict reporting the identity of victims, witnesses and defendants under the age of 18 who appear in magistrates' courts and the Crown Court. The protection provided by these provisions is subject to and should be interpreted in accordance with the rights contained in the European Convention of Human Rights (Annex 1) and in the United Nations Convention on the Rights of the Child 1989 (UNCRC) (Annex 2). The UNCRC has been ratified by the UK so although it has not been formally incorporated unto the law in England and Wales, the Articles have binding force. It also informs the way that the ECHR is interpreted in cases involving children and young people under the age of 18.
All courts must also have regard to the welfare of all children and young people who attend the court as victims, witnesses or defendants (section 44 CYPA 1933) and this will be a relevant consideration when deciding whether reporting should be restricted. The welfare of the child is likely to favour a restriction on publication. Any decision to lift reporting restrictions must be necessary, proportionate and there must be a pressing social need for it (Article 10 ECHR).
The general rule is that reporting restrictions expire when the young person attains the age of 18 as he/she is no longer a child in the proceedings and does not come within the child protection remit of the CYPA 1933 whether under section 39: R v CCC ex p W, B and C  1 Cr. App R (2) or section 49: T v DPP and North East Press  EWHC 2408 Admin. The purpose underlying sections 39 and 49 is not to protect the interest of young people who have become adults.
Section 49 Children and Young Persons Act 1933: Youth Court
The general rule is that proceedings in the youth court are not open to the public (section 47 CYPA 1933) and although press representatives are permitted to report on proceedings, they are automatically restricted from reporting the identity or any details that would lead to the identity of any child or young person involved in the proceedings, whether as a defendant, witness or victim (section 49 CYPA 1933). Section 49 also applies to:
- appeals from the youth court, including an appeal by way of case stated;
- proceedings in the magistrates' court for breach, revocation or amendment of a Youth Rehabilitation Order and appeals
- against such proceedings (section 49(2) CYPA 1933).
The Crown Court must hear an appeal from the magistrates' court (including the youth court) in public even though reporting restrictions apply automatically. However, it may order such a hearing to be in private (CPR 63.7) and prosecutors should usually make an application for a private hearing unless the appeal concerns a matter of law of general importance.
When reporting restrictions are used, including breach of restrictions: Section 39 Children and Young Persons Act 1933
The identity of a victim, witness or defendant under the age of 18 who is concerned in proceedings in the magistrates' court or Crown Court may be published unless the court makes an order under section 39 CYPA restricting reporting in a newspaper; or in a sound or television broadcast (section 39 CYPA and section 57(4) Children and Young Persons Act 1963).
Prosecutors should make an application to restrict reporting the identity or details that would lead to the identity of a victim and witness under the age of 18 under section 39 CYPA 1933 when the victim or witness has requested this restriction. If the views of the victim or witness have not been ascertained, prosecutors should still seek such restrictions if these would appear to be in the best interests of the young victim or witness, having regard to the principles set out in this guidance.
Young victims of rape and other serious sexual offences will have automatic anonymity subject to the provisions of the Sexual Offences (Amendment) Act 1992. Young witnesses to such offences do not receive this protection and so therefore it is at the discretion of the court to make an order under section 39 CYPA 1933.
Enforcement and Breach of section 39 and section 49 orders
When the court makes an order under section 39 it should make clear the terms of the order. The court should identify the child (ren) to whom the order relates. Prosecutors should prepare a draft order as part of an application for an order under section 39. A written copy of the order should be drawn up as soon as possible after the order has been made orally. A copy should be available in the court office for inspection by the press and the fact that an order has been made should be communicated to those who were not present when the order was made, for example by a short notice included in the court list when the case is subsequently listed.
Breach of reporting restrictions imposed automatically under section 49 or made by a section 39 CYPA 1933 order are summary offences (section 39(2) CYPA 1933 and section 49(9) CYPA1933, which are effectively offences of strict liability). There are very good reasons for restricting publication of material that identifies children and young people who are concerned in court proceedings. Public identification of children and young people in breach of CYPA is irreversible and can cause both immediate and long term distress and harm; therefore it will almost always be in the public interest to prosecute those who have responsibility for publication of material that breaches CYPA 1933.
Prosecutors should notify the DCCP of any cases involving breach of section 39 and 49 orders. It is good practice to notify AGO of such cases.
Further information, including details on issues such as the identification of the person(s) responsible for any such breach can be found in the legal guidance Contempt of Court and Reporting Restrictions.
When an application should be made to lift reporting restrictions: Section 49 Children and Young Persons Act 1933
The reporting restriction under section 49 is automatic so the court does not need to make an order. It may make an order allowing restrictions to be lifted if:
1. It is appropriate to do so to avoid injustice to the child or young person under 18 (section 49(5)(a) CYPA 1933);
2. It is necessary to dispense with the restriction to apprehend a defendant who is unlawfully at large and has been charged with or has been convicted of a violent or sexual offence or one that is punishable with imprisonment for 14 years or more if committed by a person aged 21 or over.
- A defendant is unlawfully at large if he or she is away from the place of custodial remand or has been released on bail but is liable to arrest with or without a warrant (section 49(11) CYPA 1933).
- The application may only be made by the DPP after giving notice to the court and to the defence (section 49(5)(b), 5(6) and 5(7) CYPA 1933). The CPS should also comply with CPR Part 16.
- The application should be in writing and should comply with Rule 16 of the Criminal Procedure Rules. It should set out the charge faced by the defendant, whether the defendant has been convicted or sentenced, the length of time that the defendant has been unlawfully at large and the reasons why the CPS considers it necessary for the restriction to be lifted to apprehend the defendant. Where the defendant has not been convicted, care should be taken not to reveal details of the offence or the defendant's antecedent history that may prejudice a fair trial.
3. It is in the public interest to dispense to any specified extent with the restrictions in relation to a child or young person convicted of an offence (section 49(4A)). This power to dispense with anonymity must be exercised with very great care, caution and circumspection. Some young people, for example looked after children, may be particularly vulnerable if their identity is published.
The court may make the order of its own motion but it must provide the parties to the proceedings an opportunity to make representations and it must take into account any representations which are duly made. It is likely that any application to dispense with the restriction will be made by a representative of the media who should comply with Rule 16 CPR by giving notice of the application to all the parties and providing an explanation as to why the reporting restriction should be varied or removed.
Prosecutors should give the following points careful consideration and make appropriate enquiries before making an application that it is in the public interest to dispense with the automatic restriction:
- The Youth Court Bench Book (March 2010 page 10) states that the power is exercisable where a child or young person has been found guilty of persistent offending and it is in the public interest to dispense with the restriction.
- The court may direct that other persons should be notified of the application, so it may be appropriate to obtain the views of parties such as the police, the Governor of the YOI where the youth is or is likely to be detained before the court determines where the public interest lies. There may be additional information that neither the CPS nor the defence can supply e.g. the impact of the loss of anonymity on rehabilitation or a risk to the safety of the youth and his family if he is identified.
- Although the court may make an order under section 49(4A) as soon as the youth is convicted or enters a plea, it may be in the interests of justice to delay making a decision until the sentencing hearing when the court will have the benefit of the Pre-Sentence Report and the views of any other interested parties. The risk of the defendant changing his plea and being acquitted of the offence, after details of his conviction have been published is also eliminated. Where the defendant is convicted after trial, it may be appropriate to wait for the appeal period to expire or, if an appeal is lodged, the outcome of the appeal before making the order.
- The court should consider the effect of identification on rehabilitation. The principal aim of the youth justice system is to prevent offending, including re-offending. Identification of a youth may be detrimental to his own rehabilitation and that of other young people related to him or detained with him.
- Prosecutors should be familiar with the cases of McKerry v Teesdale and Wear Justices  WL 546 and Damien Pearl v Kings Lynn Justices  EWHC 3410 (Admin) and should draw the key principles from these cases to the court's attention, in particular that:
- "it would be wholly wrong for any court to dispense with a juvenile's prima facie right to anonymity as an additional punishment. It is also very difficult to see any place for "naming and shaming". The ... criterion that it is in the public interest to dispense with the reporting restriction must be satisfied. This will very rarely be the case and justices making an order under section 49(4A) must be clear in their minds why it is in the public interest to dispense with the restrictions," (McKerry v Teesdale).
- In both cases, the public interest in lifting the restriction was for public protection. Both defendants had been convicted of a driving offence that caused a serious risk of harm to the public and also had a history of offending and failure to comply with court orders.
- The public interest may be served by partial lifting of the reporting restriction. It may be sufficient to publish the name of the defendant to satisfy the public interest but publication of a photograph, address or school should remain restricted to protect the welfare and privacy of the child or young person.
When reporting restrictions should be opposed/sought: Section 39 Children and Young Persons Act 1933: Youth Defendants
A reporting restriction in respect of a defendant will usually be sought by the defence and may be opposed by a press representative. It is usual for a section 39 order to be made at the outset of proceedings and for the court to consider removal or variation post conviction. The prosecutor should remind the court of its powers and the principles to be applied. The CPS should not oppose an application for a section 39 order where the restriction appears to be necessary for a fair trial or to protect the ECHR and UNRCC rights of the youth and these factors outweigh the open justice principle.
Youths are "vulnerable defendants" for the purposes of Part III. 30 Criminal Court Practice Direction and therefore all possible steps must be taken to assist them to understand and fully participate in their trial. The ordinary trial process should be adapted as far as necessary to meet those ends so that magistrates' courts and Crown Court procedures are analogous to those in use in the youth court. This includes restricting reporting and restricting attendance by members of the public, so that the youth is not distracted or deterred from giving evidence.
Where the only reason that the youth is not being tried in the youth court (and therefore covered by automatic reporting restrictions) is that he is jointly charged with an adult and it is in the interests of justice for them to be tried together, prosecutors should seek/not oppose a reporting restriction before conviction.
There will sometimes be circumstances, for example where a youth has been convicted of a particularly serious crime that the prosecutor should make an application to the court to lift an order made under section 39. Before making such an application, prosecutors should consider the following principles, and draw them to the attention of the court in support of any application that is made. Simon Brown LJ in R v Winchester CC ex p B  1 Cr. App. R. 11 identified a set of principles to be applied when the court is deciding whether to impose or lift restrictions that were approved and restated in R (A) v St Albans Crown Court ex parte T  EWHC 1129 and in R (on the application of Y) v Aylesbury Crown Court, CPS, Newsquest Media Group Limited  EWHC 1140 (Admin):
- The court will consider whether there are good reasons for naming the defendant.
- In reaching that decision the court will give considerable weight to the age of the offender and the potential damage to any young person of public identification as criminal before the offender has the benefit or burden or adulthood.
- By virtue of section 44 Children and Young Persons Act 1933 the court must have regard to the welfare of the child or young person.
- The prospect of being named in court with the accompanying disgrace is a powerful deterrent and 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.
- 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.
- The weight to be attached to the different factors may shift at different stages of the proceedings and in particular after the defendant is 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.
- The fact that an appeal has been made may be an appropriate consideration.
The following additional factors to take into account when deciding whether to lift a reporting restriction under section 39 were considered in respect of Jon Venables and Robert Thompson and in the Ruling on the application to lift reporting notification on the defendants' identities: Sheffield Crown Court 22 Jan 2010. The defendants in both cases were under the age of 13 and were convicted of murder and of various grave crimes respectively.
- "The public interest also demands a good opportunity of rehabilitation, including the opportunity to be brought up in a secure in a way so as to facilitate their rehabilitation." (Venables and Thompson and News Group Papers Ltd and Associated Newspapers Ltd and MGM Ltd.  EWHC QB 32.) In the Sheffield case both of the secure units where the convicted children were living believed that identification would have an adverse effect on their rehabilitation and that of another child in the family;
- "Removal of anonymity will result in other youths in a YOI or secure unit knowing what the youth had done, which would inevitably be disseminated to the wider public. This could lead to a youth being ostracised or harmed by others in the unit, in their location being disclosed to the media for payment, in the parents of other youths insisting that their children be removed from the units (putting pressure on the limited availability of such places which are known to be extremely expensive to provide), and in the units being subjected to anonymous threats." (Sheffield case);
- "The safety of the family of the offenders and the cost of protection of the families and the youths, while serving their sentence and on release. If the identity of the youth is made known it may be that he will need a new identity at significant cost when he is released in order to ensure that he is not subject to reprisals."
Section 39 orders : the test to be applied
In R on the application of Y v Aylesbury Crown Court, Crown Prosecution Service, Newsquest Media Group Limited  EWHC 1140 (Admin), the Administrative Court gave the following guidance to courts to decide whether a section 39 restriction should be made/lifted:
- The defendant will have to satisfy the court that there is a good reason to impose the restriction. In most cases the good reason upon which the defendant child or young person will rely is his or her welfare (Section 44 Children and Young Persons Act 1933);
- The court should identify the factors which would favour restriction on publication and the factors which would favour no restriction;
- The court should 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, and 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;
- If having conducted the balancing exercise, the factors favouring a restriction on publication and the factors favouring publication are very evenly balanced, then a court should make an order restricting publication;
- 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;
- The court may also decide to permit the publication of some details but not all;
- The court 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 welfare of the child must be taken into account, but the weight to be given to it 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;
- The court should give reasons for its decision.
When reporting restrictions should be opposed/sought: Section 39 Children and Young Persons Act 1933: Young Victims and Witnesses
In all cases heard in the (adult) magistrates' court and Crown Court where there are victims and witnesses under the age of 18, the CPS should ask the police to inform the child or young person and their parent(s) or guardian(s) of the court's power to restrict reporting and ascertain whether they would like the court to make an order under section 39 CYPA 1933.
Where a section 39 order is sought in respect of a victim or witness, the CPS should make the application to the court as soon as is reasonably practicable and notify the defence of the application in accordance with CPR 16. The onus will be on the CPS to show cause for restricting publicity, which may include:
- The concerns of the child or young person and their parent(s)/guardian(s);
- Any threat to the safety of the child or young person if their identity is reported;
- The potential damage to a young person of public identification as a victim or witness before they have the benefit of adulthood;
- The need to have regard to the welfare of the child or young person (section 44 CYPA 1933) and their rights under Articles 3 and 16 UNCRC 1989;
- The absence of any good reason for naming the witness.
The media or defence may ask for a section 39 order to be later varied or lifted, and in such cases, the CPS should ask the court to require the applicant to comply with CPR by serving the young person currently protected by the section 39 restriction and the police with notice of the application. The prosecutor should ask the court not to lift the restriction until the victim or witness or any other person given notice has had a reasonable opportunity to make representations.
There is no automatic restriction on reporting that the youth court has made an Anti-social Behaviour Order (ASBO) as an ancillary order after conviction (section 1C(9C) Crime and Disorder Act 1998 or where a youth has been convicted of the offence of breach of an ASBO (section 1(10) Crime and Disorder Act 1998). This is to facilitate the effectiveness of ASBOs by informing the public of the identity of those who are subject to ASBOs and the conditions on the ASBO so that breaches can be reported to the police. Community confidence is increased when the identity of those convicted and sentenced for breach of ASBOs are reported.
However, any convictions in the youth court for offences that preceded and led to the ASBO being made are still subject to an automatic restriction under section 49 CYPA unless the court makes an order under section 49(4A) lifting that restriction. Courts will usually adopt a logical approach by making an order under section 49(4A) to allow reporting of the substantive offences as well as the ASBO (or breach), or by making a section 39 order in respect of the ASBO (or breach).
In ASBO cases courts must balance the interests of the child or young person subject to the ASBO with the interests of the public (R (A) v Leeds Magistrates' Court  EWHC 554 (Admin)). Prosecutors should therefore have regard to the principles set out in Section 39 Children and Young Persons Act 1933 when making representations in these cases.
Annex 1: European Convention of Human Rights
When considering issues around reporting restrictions prosecutors should be mindful of the Convention Rights that may be engaged, which are likely to be:
- Article 2 Right to Life
- Article 3 Prohibition on Torture, Inhuman or Degrading Treatment
In exceptional cases courts have the power to issue injunctions preventing reporting where publication would interfere with the duty to provide protection from a threat to a person's life or personal safety. This applies to witnesses (Re officer L  UKHL 36) and to defendants (Venables v News Group Newspapers Ltd.  Fam. 430, Fam. D.)
- Article 6 Right to a Fair Trial
Article 6 (1) states that a public hearing and public pronouncement of the judgment of the court are essential ingredients of a fair trial. However, the press and public may be excluded from all or part of the trial in the following circumstances:
- In the interests of morals, public order or national security;
- Where the interests of juveniles or the protection of the private lives of the parties so require; or
- To the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
- Article 8 Right to Respect for Private Life
- Article 10 Right to Receive and Impart Information
There is often a conflict between the Article 8 right to respect for private life and the Article 10 right of the public to receive and impart information. In R v Croydon CC ex p Trinity Mirror, Times Newspapers Ltd, News Group Newspapers Ltd and Newsquest Ltd and A and B (minors)  EWCA Crim 50, Sir Igor Judge said that, "it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials. The identity of those convicted and sentenced should not be concealed. An order restricting reporting of the identification of an adult defendant in order to protect the Article 8 rights of his children would be a substantial erosion of the principle of open justice to the overwhelming disadvantage of public confidence in the criminal justice system. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional." Although this did not relate to a youth case, the principles it contains have a wider relevance to the current guidance.
Annex 2: United Nations Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child 1989 rights apply to all children below the age of 18 (Article 1) and the rights that are engaged include:
- Article 3 states that 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;
- Article 12 states that a child who is capable of forming his or her own views has the right to express those views in all matters affecting the chid, the views of the child being given due weight in accordance with the age and maturity of the child ... in particular the opportunity to be heard in judicial or administrative proceedings affecting the child either directly or through a representative or an appropriate body;
- Article 16 (1) states that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputations. Article 16(2) states that the child has the right to the protection of the law against such interference or attacks; and
- Article 40 (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 reintegration and the child's assuming a constructive role in society. (2) To this end, and having regard to the relevant provisions of international instruments, 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.
Annex 3: The United Nations Standard Minimum Rules for the Administration of Justice 1985 (the Beijing Rules)
The Beijing Rules should also be considered where the person under 18 is a defendant. The Rules, which were adopted by the United Nations General Assembly in 1985, are not binding in international law. However, States are invited to observe the Rules, including:
- Rule 8 Protection of Privacy which states:
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.
The commentary to the Beijing Rules states that Rule 8 stresses the importance of the protection of the juvenile's right to privacy. Young persons are particularly susceptible to stigmatization. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as "delinquent" or "criminal".
- Rule 21 Records
21.1 Records of juvenile offenders shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the case at hand or other duly authorised persons.