Behind bars | Anonymity is a safe haven

In the midst of extraordinary publicity about one particular child, it is perhaps timely to consider the effect of publicity on other, less privileged youngsters. Under section 39 of the Children and Young Persons Act 1933 any child appearing in the Crown Court can have the benefit of anonymity. Under this section, a Crown Court can prohibit publication of the name, address, school or any information calculated to lead to the identification of any child or young person concerned in criminal proceedings before the court.

It can also prohibit publication of any photograph of the child. That includes complainants, witnesses and defendants, who will make an appearance before the court - but it is wide enough to include the children of defendants or witnesses, if they are 'concerned' in the proceedings. That can, for example, include the children of adults charged with serious or disturbing offences where publicity would harm the interests of the child.

Although there are a host of reporting restrictions operating in the courts which are automatic, based either on the type of application - e.g dismissal applications, and prosecution appeals against terminating rulings - or the type of case, e.g. complainants in sex offences, the protection of children in the Crown Court is a discretionary power. The person applying for the order has to establish there is a 'good reason' for it, apart from the mere fact of the age of the child or young person. Section 39 itself doesn't give a lot of guidance either about the imposition or the lifting of a section 39 order, but the welfare of the child is seen as reason good enough: section 44 of the Act sets out the welfare principle which ought to imbue and inform criminal proceedings involving minors.

Burden on the child

But this power to protect children has a fight on its hands - in the opposite corner is Article 10 of the Convention and the power of the press. The press, or indeed the CPS, can apply for an order to be lifted. When they do, they do not have establish there is a good reason for lifting the order - the child has to establish that there is good reason for the order staying put. The judge's role is to balance the competing interests: between open justice and the public interest, and the interests of the child. Generally, the trend in cases seems more inclined towards lifting restrictions, particularly where the offence was serious: the more serious a case is, apparently, the more interest the public has in knowing the identity of the child who committed it. What this means, in practice, is that particularly sensational cases with disturbing or juicy details make very good copy for newspapers: the sensation increased by the fact the offender was a child. And it is those kinds of cases where front page publicity can cause the most damage to the child, the family, and the chances of rehabilitation which have to be at the heart of youth justice. Another factor relied on to lift these orders is the power to deter: that having one's name and family details out in public, and the guilt and shame this involves, acts to put others off committing the same type of offences. Deterrence is one of the three factors which inform the sentencing of adults, a triumvirate with punishment and rehabilitation. But the only statutory purpose in the sentencing of children is rehabilitation - to keep them out of the criminal justice system in future. Adding deterrence in after sentence - when these orders are generally lifted - makes no moral or legal sense.

Welfare

So where does the balance lie? The section 44 welfare principle just says, baldly, that courts should have regard to the welfare of the child. How much regard? And what is regard? Will lip service do? Not much guidance there. But help is at hand in recent cases. Queen on the Application of Y, ex parte Aylesbury Crown Court ( 2012) EWHC 1140 ( Admin) reviewed the case law, including international obligations towards children. It set out the principle that where the factors favouring a restriction on publication and the factors favouring publication were evenly balanced, courts should plump for restriction. ZH (Tanzania) FC Appellant v SS for Home Department (Supreme Court, 1 February 2011) concerned the best interests - i.e. welfare - of children affected by the deportation of a parent. Lord Kerr at paragraph 46 gave very strong guidance: best interests while not a factor of limitless importance overriding all others, must rank higher than any other factor. They are not just one consideration weighing in the balance alongside others.

These cases together go some way to remedying the burden on children having the onus to keep themselves anonymous. Anonymity is a safe haven where young offenders can, with luck, mend themselves. It should be preserved.