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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Y, R (on the application of) v Aylesbury Crown Court & Ors  EWHC 1140 (Admin) (01 May 2012)
Cite as:  EWHC 1140 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE SINGH
| THE QUEEN ON THE APPLICATION OF Y
|- and -
|AYLESBURY CROWN COURT
|(1) CROWN PROSECUTION SERVICE
|(2) NEWSQUEST MEDIA GROUP LTD
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
MR. S. COHEN (not a barrister or solicitor) appeared on behalf of the Second Interested Party.
The Defendant and the First Interested Party did not appear and were not represented.
Hearing date: 7th December 2011
Crown Copyright ©
Lord Justice Hooper:
This is the judgment of the court.
In relation to any proceedings in any court . . . the court may direct that
(a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person [by or against] or in respect of whom the proceedings are taken, or as being a witness therein;
(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except in so far (if at all) as may be permitted by the direction of the court.
"We write to respectfully ask for you to consider removing an order which currently prohibits the identification of a 16 year old defendant.
Our request relates to a case number ... and associated cases, of the sentencing of Iftikar Aslam and the 16 year old [claimant], who have both pleaded guilty to charges of arson.
There is currently a Section 39 reporting restriction preventing the naming of the 16 year old. We are writing to respectfully request that the order be lifted so that the youth can be identified by the press following his sentencing.
Over the course of the last year there have been a number of serious arsons in the Castlefield area of High Wycombe, which have naturally caused great concern to the people living there.
We believe that there is an overwhelming matter of public interest in naming the youth because of the impact this arson, and several others in Castlefield, have had on the community. We believe this case, and the identification of any offenders connected with it, could act as a deterrent to others from committing such a grave offence.
We have been made aware that Thames Valley Police also wish the youth's identity to be released as the police force takes the view that doing so would be in the public interest."
"I would like to support the application by the Bucks Free Press to lift the order under section 39 of the Children and Young Persons Act 1933 which bans the naming of the 16 year old in case number ... which is the sentencing of Iftikar Aslam and the 16 year old for arson.
I believe it is necessary to publish the name for two reasons. Firstly to address community concerns surrounding the investigation and the subsequent court proceedings. Secondly, to support the investigation of more than 100 crimes linked to this case and give potential witnesses the confidence to come forward.
Thames Valley Police in Wycombe has held two public meetings to keep the public informed of the investigation. During both meetings, members of the public have threatened to take matters into their own hands. In addition, after other incidents of arson in the estate, large groups have attended the scene and made threats to the two accused in this case and their associates.
By naming both offenders and demonstrating they have been brought to justice, I believe the community will be reassured that the matter has been dealt with effectively by the judicial system and the tension in the community will be reduced.
The two individuals in this case have been convicted of one offence of arson. However, there are still over 100 matters outstanding, which we believe are linked. By naming these individuals and showing that they have been brought to justice, I believe witnesses who have no confidence in the criminal justice system or who have previously been intimidated will be encouraged to come forward and give intelligence, which could help us solve the outstanding crimes and bring back the community cohesion which once existed."
"The prosecutor must always be in a position to respond to any application for reporting restrictions under section 39 and it will never be appropriate to adopt a neutral stance."
Although paragraph 16 is not worded as clearly as it might be, it seems likely that the authors of the Guidance intended the prosecutor to take a stance when an application to vary of the kind with which we are concerned is made.
"... it seems to me on the basis of the written applications, that I accept, that this young man's identity is already known to local persons. That there had been meetings with large groups who have identified him as a person rightly or wrongly they believe to be guilty of arson and so the suggestion that to prohibit publication of his name to prevent his identity becoming known in the particular circumstances does not stand. The local community are concerned about persons setting fire to cars and it seems to me in those circumstances perhaps to protect him, because the point would be made there is only one offence for which he was responsible at this stage and because his identity is already known and he is rightly or wrongly thought to be responsible for any other offences [sic], I will vary the order under section 39 to say that his name and address can be published, but no picture or reference to any physical appearance should be published in any newspaper which is or includes any picture of [the claimant] and that includes any description as: "The boy with this. A boy with that. The boy with the etcetera". Now that has to be drawn up by the court."
i) The claimant's identity is already known to local people;
ii) The limited publication of the claimant's name and address together with the fact that he had pleaded guilty to one arson and sentenced accordingly would give the claimant, on his release, some protection from those who thought him to have been involved in more arsons.
"In addition to our initial application to lift the order under section 39 of the Children and Young Persons Act 1933 which bans the naming of the 16 year old in case number ... , I would be grateful if you could consider the following points:
The offender is now 17 years old (he was 16 at the time of sentencing) and his co-defendant for the arson is 19 years old. The case was held at an adult court.
Members of the community named this offender as an arsonist as far back as 2010 although they have been too scared to make written statements or provide evidence. The offender's identity and address is already known within the community, therefore naming him makes little difference to his welfare.
The overwhelming consensus from within the community is that the individuals involved need to be punished for their actions and I believe naming this offender is a significant step towards doing this. We have intelligence that [the claimant] has been boasting that he is responsible for starting fires on the estate, and by openly naming him we can confirm which fire he is responsible for.
To reassure the community a mounted patrol took place on the estate. The horses became a target for the Castlefield gang who were seen throwing stones and other pieces of debris at the horses themselves. Although this incident is not linked to the arsons, the two males seen to have been present are known associates of both Iftikar Aslam and [the claimant] and once again shows how willing the young people of Castlefield are to try and intimidate not only the community but the officers patrolling the area as well. By naming [the claimant], the criminal justice system would be deterring both him and his associates from committing crime in future.
By demonstrating that this offender has been brought to justice we hope to give confidence to victims of the arson attacks and other individuals from within the community, who may have information about the other attacks and are frightened of repercussions to feel confident to come forward with information about the other arsons.
The naming of the offender would not only offer reassurance to the local community that the Criminal Justice system has been effective in bringing the perpetrators to justice, but demonstrate that the police are doing all that they can. This would also disrupt and weaken the strength of the gang that this 16 year old is part of."
i) In deciding whether to impose or thereafter to lift reporting restrictions, the court will consider whether there are good reasons for naming the defendant;
ii) In reaching that decision, the court will 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 the offender has the benefit or burden of adulthood;
iii) By virtue of section 44 of the 1933 Act, the court must "have regard to the welfare of the child or young person";
iv) The prospect of being named in court with the accompanying disgrace is a powerful deterrent and the 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;
v) 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;
vi) The weight to be attributed to the different factors may shift at different stages of the proceedings and, in particular, after the defendant has been 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;
vii) The fact that an appeal has been made may be a material consideration.
"There must be a good reason, apart from age alone, for imposing a s39 CYPA order. There is a clear distinction between the automatic ban on identification of children in Youth Court proceedings and the discretion to impose an order under s39 of the 1933 Act. Whereas under s49 CYPA ... there must be a good reason for lifting the order, under s39 the onus lies on the party contending for the order to satisfy the court that there is a good reason to impose it. The appellate courts have emphasised that Parliament intended to preserve the distinction between juveniles in Youth Court proceedings and in the adult courts.
In deciding whether to impose an order under s39 the judge must 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. Where the child is an accused person the court 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. 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 as very young children cannot be harmed by publicity of which they will be unaware and s39 orders are therefore unnecessary.
Courts 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 courts have recognised that in considering whether to lift an order the welfare of the child must be taken into account, but the weight to be given to that interest 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."
"Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person, and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training".
"3.1 ... unlikely to have the same experience and capacity as an adult to realise the effect of their actions on other people or to appreciate the pain and distress caused and because a young person is likely to be less able to resist temptation, especially where peer pressure is exerted."
"3.2 Additionally, in most cases a young person is likely to benefit from being given greater opportunity to learn from mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on the prospects and opportunities of the young person, and, therefore, on the likelihood of effective integration into society." (Emphasis added)
"12 These provisions [sections 39 and 49] of domestic legislation are to be read against a background of international law and practice to which the European Court of Human Rights has recently drawn attention in judgments in T v. United Kingdom and V v. United Kingdom (1999) 30 E.H.R.R. 121. These judgments draw attention to the Beijing Rules adopted by the United Nations General Assembly on November 29, 1985. They are not binding in international law and states are invited, not required, to observe the rules approved. The rules do, however, provide in Rule 8 for protection of privacy and provide:
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.
13. The European Court also drew attention to the United Nations Convention on the Rights of the Child 1989. This Convention was adopted by the General Assembly of the United Nations on November 20, 1989 and the Articles do have binding force in international law, binding Member States of the Council of Europe, including the United Kingdom. Article 3.1 of this Convention states:
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.
14. Article 40 provides so far as relevant:
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 re-integration and the child's assuming a constructive role in society.
To this end the 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.
15. Attention is also drawn to Recommendation No. R(87)20 of the Committee of Ministers of the Council of Europe, which was adopted on September 17, 1987. That Recommendation included the following:
Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("the Beijing Rules"),
Recommends the governments of member states to review, if necessary, their legislation and practice with a view:
8. to reinforcing the legal position of minors throughout the proceedings by recognising, inter alia:
the right of juveniles to respect for their private lives;
"17. It is in my judgment plain that there is in a situation such as the present some tension between competing principles. It is a hallowed principle that justice is administered in public, open to full and fair reporting of the proceedings in court, so that the public may be informed about the justice administered in their name. That principle comes into collision with another important principle, also of great importance and reflected in the international instruments to which I have made reference, that the privacy of a child or young person involved in legal proceedings must be carefully protected, and very great weight must be given to the welfare of such child or young person." (Emphasis added)
"18. ... the requirement to be cautious and circumspect would not properly describe the court's approach when it is considering an order under section 39 [as opposed to section 49], but in my judgment the need to take great care in the albeit different balancing exercise facing a court in such circumstances is no less important."
i) the naming of the claimant would deter others "from committing such a grave offence";
ii) the naming of the defendant is an additional necessary punishment for him;
iii) the naming not just of one offender but of both offenders demonstrates to the community that the police have done all that they could do in the face of a serious problem of gang related arson and intimidation and thus would restore the confidence of the community in the criminal justice system;
iv) the naming of not just one offender but of both offenders would encourage victims of arson attacks and other individuals, who are now frightened of the repercussions of coming forward, to feel confident about coming forward and give information about the some 100 other arsons.
Note 1 According to Newsquest in its skeleton argument there is confusion about the date and even the existence of the earlier order. The judge proceeded on the basis that there was an earlier order and it is very unlikely that no order had been made at some earlier stage in the Crown Court in relation to the arson proceedings. [Back] Note 2 See Crim PR 16.2(3). [Back] Note 3 Section 39 was amended in 1999 to exclude criminal proceedings, but the amendment has not been brought into force. See Youth Justice and Criminal Evidence Act 1999, s 48, Sch 2, paras 1, 2. [Back] Note 4 http://cps.gov.uk/legal/p_to_r/reporting_restrictions_-_cases_involving_convicted_youths/
[Back] Note 5 The Thames Valley Police intended to identify the claimant on their website. [Back] Note 6 http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/crown_court_reporting_restrictions_021009.pdf
Note 1 According to Newsquest in its skeleton argument there is confusion about the date and even the existence of the earlier order. The judge proceeded on the basis that there was an earlier order and it is very unlikely that no order had been made at some earlier stage in the Crown Court in relation to the arson proceedings. [Back]
Note 2 See Crim PR 16.2(3). [Back]
Note 3 Section 39 was amended in 1999 to exclude criminal proceedings, but the amendment has not been brought into force. See Youth Justice and Criminal Evidence Act 1999, s 48, Sch 2, paras 1, 2. [Back]
Note 4 http://cps.gov.uk/legal/p_to_r/reporting_restrictions_-_cases_involving_convicted_youths/ [Back]
Note 5 The Thames Valley Police intended to identify the claimant on their website. [Back]
Note 6 http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/crown_court_reporting_restrictions_021009.pdf [Back]