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New rights of judicial review for children named in criminal trials

27 July 2010

Children and young people should be able to launch a judicial review if a Crown Court judge lifts reporting restrictions and allows them to be identified, the Law Commission has said.

The commission has backed a further right of judicial review for defendants or witnesses who believe that a ruling during a trial could “lead to a real or immediate risk to life”.

At the same time, the commission has suggested sweeping aside the right to appeal from the Crown Court to the High Court “by way of case stated” and blocking judicial reviews until trials have ended, unless the decision involved is a refusal of bail.

In their report, the law commissioners said they were conscious of the need to allow Crown Court judges to conduct trials unimpeded, but “our view is that the protection of the article 8 rights of children and young people is sufficiently important for there to be a right of appeal against a ruling which allows a child or young person in a trial on indictment to be identified”.

They went on: “The rationale for restricting reporting of criminal proceedings in relation to child defendants is, we believe, their immaturity and the expectation that they will change.

“If their names are made public for crimes committed when children, their chances of rehabilitation may well be damaged.

“The European Court of Human Rights has commented on what it called, ‘the special position of minors in the criminal-justice sphere’ and has noted ‘in particular the need for the protection of their privacy at criminal trials’.”

The commissioners said appeals from children, which they expected to be rare, would be to the Court of Appeal (Criminal Division).

This would also be the case for appeals by defendants, witnesses or jurors, who believed that a court ruling could put their lives at risk.

The law commissioners said the current bar on judicial reviews of the Crown Court “in matters relating to trial on indictment” should be scrapped because it was confusing and had led to “uncertainty, litigation and, in some cases, the absence of a remedy”.

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