R
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ELIAS |
| Judgment Date | 20 May 2002 |
| Neutral Citation | [2002] EWHC 1129 (Admin) |
| Docket Number | CO/1644/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 May 2002 |
[2002] EWHC 1129 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Elias
CO/1644/2002
CO/374/2002
MR H CHARLTON (instructed by Stokoe) appeared on behalf of T
MR S MORLEY (instructed by Surrey Police, Force Solicitor, Farnham, Surrey, GU9 7PZ) appeared on behalf of the Chief Constable of Surrey
MR M WATSON (instructed by Frame Smith & Co, 15 London Road, Guildford, Surrey, GU1 2AA) appeared on behalf of JHG and DHG
Monday, 20th May 2002
In this judgment I propose to deal with two cases that have been separately argued before me. The first is the case of The Queen on the application of T v St Albans Crown Court and the second is Chief Constable of Surrey v JHG and DHG. Both cases raise the issue whether it is appropriate for a court to make an order pursuant to section 39 of the Children and Young Persons Act 1933 to confer anonymity on children or young persons in respect of whom an anti-social behaviour order has been made pursuant to section 1 of the Crime and Disorder Act 1998.
I heard the first application a few days ago. The defendant was not represented in that case, although I heard some brief but helpful submissions from the editor of the local newspaper who has an interest in this matter. It came to my attention that shortly afterwards I would be considering the Surrey case in which similar issues have arisen. In the light of that, it seemed prudent, and counsel for T in the first action agreed, that I would delay giving judgment in that case until I had heard the arguments in the later application. Of course, the particular facts of each case are significantly different, as this judgment will make clear. Moreover, the two cases have come before this court by a different route. In the T case the challenge is by way of an application for judicial review against a decision of the Crown Court. In the Surrey case it is by way of a case stated from the District Judge who imposed the order. In the T case the court refused to impose an order under section 39; not so in the Surrey case. Before considering the facts of each case, I shall first analyse the legal principles relevant to making section 39 orders, and consider the nature of an anti-social behaviour order.
Section 1 of the Crime and Disorder Act 1998
First I set out the legislation under which the anti-social behaviour orders are made. Section 1(1) of the Crime and Disorder Act 1998 is as follows:
"An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely: —
(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and
(b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him;
and in this section "relevant authority" means the council for the local government area or any chief officer of police any part of whose police area lies within that area."
Subsection (4) provides:
"If, on such an application, it is proved that the conditions mentioned in subsection (1) are fulfilled, the magistrates' court may make an order under this section (an "anti-social behaviour order") which prohibits the defendant from doing anything described in the order."
By subsection (7):
"An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order."
By subsection (10) it is provided that:
"If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable:—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both."
The imposition of an anti-social behaviour order does not constitute a criminal proceeding. That is plain from the judgment of the Court of Appeal in McCann v Manchester Crown Court. In that case Lord Phillips MR in his judgment analysed the nature of these orders in detail and held that they did not constitute criminal proceedings within the meaning of Article 6 of the European Convention on Human Rights. It follows that the civil evidential rules apply and, in theory, so does the civil burden of proof. However, as Lord Phillips pointed out at paragraph 65 of the decision, in practice the standard of proof is a very flexible one and the difference between the two standards in this context is largely illusory. In effect, the criminal standard will be applied in cases of this kind.
Section 39
Section 39 of the Children and Young Persons Act is as follows:
"(1) 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 proceedings as aforesaid;
except in so far (if at all) as may be permitted by the court."
Accordingly, there will only be anonymity conferred under that particular provision if the court so directs, and it may so direct either generally or it may limit the nature of the publicity which can be given.
The relevant principles applicable to the making of a section 39 direction have been considered by the courts on a number of occasions. An issue arising in this case is the extent to which, if at all, those principles are to be modified, or their application is to be affected, in a context where the child or young person in question is the subject of an anti-social behaviour order.
In determining whether anonymity should be provided, the law has not applied a consistent set of rules applicable to all circumstances where a child or young person appears as a defendant in criminal proceedings. Where there are criminal proceedings in a youth court section 49(1) of the 1933 Act provides in effect that there should be no disclosure of information which would reveal the identity of the child or young person concerned, but an exception is then provided in subsection (4A) as follows:
"If a court is satisfied that it is in the public interest to do so, it may, in relation to a child or young person who has been convicted of an offence, by order dispense to any specified extent the requirements of this section in relation to any proceedings before it to which this section applies …"
Accordingly, whereas in youth court proceedings anonymity is automatically conferred unless there is a particular order dispensing with it, the starting point for other proceedings is that there shall be a disclosure of the child or young person's identity unless a particular direction to the contrary is made restricting it. No doubt the reason for this different treatment is that, in general, only the more serious offences involving young persons are likely to be tried other than in a youth court.
In R v Crown Court at Leicester, ex parte S [1992] 2 All ER 659 Watkins LJ, giving judgment in the Divisional Court in a case which raised the question whether or not a section 39 direction should have been made, said this at page 662:
"In our judgment, the correct approach to the exercise of the power given by s 39 is that reports of proceedings should not be restricted unless there are reasons to do so which outweigh the legitimate interest of the public in receiving fair and accurate reports of criminal proceedings and knowing the identity of those in the community who have been guilty of criminal conduct and who may, therefore, present a danger or threat to the community in which they live. The mere fact that the person before the court is a child or young person will normally be a good reason for restricting reports of the proceedings in the ways permitted by s 39 and it will, in our opinion, only be in rare and exceptional cases that directions under s 39 will not be given or having been given will be discharged."
That dictum was quoted with approval by Lord Bingham in another Divisional Court case, McKerry v Teesdale & Wear Valley Justices [2000] Crim LR 594. That was a case in fact concerning the operation of section 49(4A) rather than section 39. Nonetheless, there was an approval by the Lord Chief Justice, as Lord Bingham then was, of the dictum of Watkins LJ. However, between those two cases the Court of Appeal had had cause to consider the observations of Watkins LJ in the case of R v Lee [1993] 2 All ER 170. In that case a 14 year old boy had been convicted of rape in 1991. In 1992 he was further convicted of other criminal offences which he had committed whilst on bail awaiting the rape trial. After being sentenced in relation to those offences, the judge refused to impose a section 39 order in respect of the second...
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