R (Keating) v Knowsley Metropolitan Bourough Council ; K v Knowsley Metropolitan Bourough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HARRISON |
| Judgment Date | 22 July 2004 |
| Neutral Citation | [2004] EWHC 1933 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2505/2004 |
| Date | 22 July 2004 |
[2004] EWHC 1933 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Harrison
CO/2505/2004
MR N ADDISON (instructed by Cantor Levin and Berg) appeared on behalf of the CLAIMANT
MISS C ELLIS (instructed by Knowlsey MBC) appeared on behalf of the DEFENDANT
This is an appeal by way of case stated from a decision of the Merseyside Justices, sitting at Knowsley Magistrates' Court on 24th July 2003, when they declined to make an order under Section 39 of the Children and Young Persons Act 1933 prohibiting publication of material likely to lead to the identification of the appellant, following the making of an Interim Anti-Social Behaviour Order, ("ASBO") under Section 1D of the Crime and Disorder Act 1998.
Section 39 (1) of the 1933 Act provides:
(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 no 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 insofar (if at all) as may be permitted by the court."
At the relevant time, the appellant was 15 years old. As the application for an ASBO is a civil matter which is heard in the Magistrates' Court rather than in the Youth Court, the provisions of section 49 of the 1933 Act did not apply, under which there is automatic anonymity subject to the power to dispense with it under section 49 (4A).
The application for the ASBO in this case listed some twelve allegations of anti-social behaviour. Seven alleged insulting or abusive behaviour towards police officers. Three related to behaviour in relation to motor vehicles, although one of those also involved threats to damage, not only a lady's motor vehicle, but to rape her. One involved an alleged assault on a resident and another involved a nuisance outside a person's home.
The application sought a number of countrywide prohibitions against the appellant relating to abusive or insulting behaviour, violent behaviour, damaging property, and driving or riding in motor vehicles. It also sought to prohibit the appellant from being in a public place in Knowsley with two or more people who were not members of the appellant's family, and it sought to prohibit him from entering an area known as Tower Hill marked on a plan.
When the matter came before the justices on 24th July 2003, it became clear that it would involve at least a two day hearing, so it was adjourned to a convenient date for a pre-trial review.
The Local Authority applied for an interim ASBO. Their reasons for doing so were that the anti-social behaviour had been of a serious and disruptive nature and that it had continued despite attempts to control it by means of an acceptable behaviour contract and by the institution of injunctive proceedings against the appellant's father. It was said that the appellant had no respect for the police or other authorities, he had no regard for the property or welfare of others, and it was improbable that his anti-social behaviour would cease unless an interim order was granted.
The justices granted that application and made an interim ASBO. The prohibitions against the anti-social behaviour were those that I have already mentioned in relation to the application for the full ASBO.
An application was then made on behalf of the appellant for what I will call an anonymity order to be made under section 39 of the 1993 Act, which was resisted by the respondent.
At this point, I take the matter up from the case stated. In paragraph 2 of the case stated the justices record the fact that, since this was an interim order, no live evidence could be called or tested by either party. The justices were served with documentary evidence and the matter proceeded by way of submissions.
It was contended by the appellant that the starting point should be that a youth should not be named and that reporting would be potentially prejudicial as the evidence had yet to be tested. Further, the issue should not be considered until the conclusion of the case. It was also argued on behalf of the appellant that most of the witnesses were police officers and that they would be well aware of the terms of the interim ASBO.
It was contended, on the other hand, by the respondent that the reporting of the matter was necessary to ensure that the order would be effective and that failure to publicise the order would restrict its effectiveness.
The case stated also refers to the fact that the justices were not, sadly, referred to any case law. I say "sadly" because there is a relevant decision of this court, albeit that it was unreported, which the justices would have found helpful to be referred to.
Paragraph 6 of the case stated reads as follows:
"We were of the opinion that because of the recent and continuing nature of the conduct alleged, the public had a legitimate interest in being made aware of the interim order so that it could be effective in policing the behaviour of Anthony Keating. The applicant authority alleged that Anthony Keating had previously failed to abide by an acceptable behaviour contract entered into prior to the commencement of this application. Accordingly, despite the age of the defendant and our concerns for his welfare and right to privacy, we consider that the interest of the public outweighed these considerations. The wider public interest was served in this case by declining to make an order under Section 39 of the Children and Young Persons Act 1933."
The case stated then goes on to pose the question for the opinion of this court as follows:
"Having regard to the fact that we were dealing with an application for an interim antisocial behaviour order against a juvenile, should we have imposed an order under Section 39 of the Children and Young Persons Act 1933 prohibiting any identification of the juvenile until a decision had been made as to whether, and on what basis, a full order would be made?"
Following the decision of the justices, the respondent, in consultation with the police, issued a leaflet containing a photograph of the appellant which, amongst other things, contained this statement:
"• Anthony Keating from Kirby has caused misery forthe lives of many residents in and around Kirby.
• He has damaged property, intimidated local residents, and been abusive and violent towards local residents and police officers."
Subsequently, the hearing for the full ASBO took place on 19th January 2004, when an ASBO was made on the basis of five of the twelve allegations of anti-social behaviour which had been included in the application.
I am told that the proceedings were compromised in the sense that the appellant admitted those five allegations, and the scope of the order which was then made was agreed between the parties. It follows that there was no finding of fact by the justices after hearing evidence. The resulting prohibitions in the full ASBO were less far-reaching than those that had been sought in the application.
I am told that there is no decided case relating to the issue of the making of an order under section 39 of the 1933 Act in the case of an interim ASBO. There is a decision by Elias J, relating to the making of section 39 orders in the case of a full ASBO. That is the case of T v St Albans Crown Court [2002] EWHC 1129 (Admin), which, I am told, is an unreported case.
THE JUDGE: In that case, Elias J reviewed the authorities relating to section 39 orders. He referred to the set of principles which should be considered when determining whether to make such an order mentioned by Simon Brown LJ, as he then was, in the case of R v Worcester Crown Court ex parte B [2000], 1 Cr App R 11.
Those principles, which are set out at paragraph 20 of the judgment of Elias J, are as follows.
"(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."
I interpose here that that is plainly a very relevant consideration in this case.
"(ii) 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 a criminal before the offender has the benefit or burden of adulthood."
That also is a relevant consideration in this case.
..."(iii) By virtue of section 44 of the 1933 Act, the court 'must have regard to the welfare of the child or young person'."
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