RXG v Ministry of Justice
Jurisdiction | England & Wales |
Judge | Mr Justice Nicklin |
Judgment Date | 29 July 2019 |
Neutral Citation | [2019] EWHC 2026 (QB) |
Court | Queen's Bench Division |
Docket Number | Case No: HQ18X02122 |
Date | 29 July 2019 |
[2019] EWHC 2026 (QB)
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Mr Justice Nicklin
Case No: HQ18X02122
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald QC and Adam Straw (instructed by Irvine Thanvi Natas Solicitors) for the Claimant
William Hays (instructed by the Government Legal Department) for the Ministry of Justice
James Segan (instructed by the Attorney General) as Amicus Curiae
Hearing dates: 20 November 2018 and 28 February 2019
Approved Judgment
Dame Victoria Sharp PQBD.
This is the judgment of the Court. This claim raises the issue of the circumstances in which the High Court should extend the anonymity of child defendants in criminal proceedings beyond their 18 th birthday.
Background
On 23 July 2015, at the Crown Court sitting at Manchester, the claimant, RXG, pleaded guilty to two offences of inciting terrorism overseas contrary to section 59 of the Terrorism Act 2000. The particulars of the offences were that, on two occasions in March 2015, he had incited another person to commit acts of terrorism, namely the murder of police officers during an attack on an ANZAC Parade in Melbourne, Australia; and the murder by beheading of a person in Australia. The Australian Federal Police were alerted to the plot and they made several arrests. No attacks were carried out. In September 2016, a 19-year-old Australian was sentenced to 10 years' imprisonment by a Court in Victoria for his role in these matters.
RXG committed the offences when he was 14 years-old. He is the youngest person ever to be convicted of a terrorist offence. His case received international media attention. On 2 October 2015, Saunders J imposed a life sentence with a minimum term of 5 years. In consequence, the earliest date on which RXG may be considered for release is 2 October 2020. In his sentencing remarks, when considering how a 14-year-old boy could commit such serious offences, Saunders J said:
“A considerable amount of expertise has gone into explaining how and why [RXG] became so radicalised. It appears he felt isolated in terms of his education and home life. There was a vacuum in his life which he filled with religious extremism. Over the period from 2012 to 2015 his behaviour gradually changed and certainly from 2014, he was accessing extremist material on the internet… He communicated with extremist propagandists who either worked for ISIS or supported their aims over the internet. They were experienced recruiters who were keen to enlist young impressionable Muslims to the cause. They groomed [RXG] and then started to use him to carry out their wishes. They succeeded in turning [RXG] into a deeply committed radical extremist. One professional who dealt with him had never encountered such entrenched extremist views… No doubt lessons can and have been learnt by many people from the unique circumstances of [RXG's] case but there is no material before me from which blame should be attributed to anyone, except those extremists who were prepared to use the internet to encourage extreme views in a boy of 14 and then use him to carry out terrorist acts.”
During RXG's trial, reporting restrictions that prevented him from being identified were imposed under section 45 of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act). The effect of those restrictions was that no matter relating to RXG could, whilst he was under 18, be included in any publication if it was likely to lead members of the public to identify him as the defendant in the criminal proceedings.
Saunders J refused an application by various media organisations to lift the reporting restrictions so that RXG could be identified. The judge considered the following factors justified continuation of the reporting restrictions until RXG reached 18 years of age:
i) Naming RXG would not act as a deterrent. On the contrary it might, by garnering significant publicity, glorify RXG and encourage others to do the same thing.
ii) On the basis of the expert evidence available to the Court, naming RXG would create a serious risk that his rehabilitation would be threatened.
iii) The interference with the open justice principle by refusing to lift the anonymity order was limited:
“… all the details of what happened, why and how it happened have been carefully recounted and analysed in public. There is nothing that I can identify which the public do not know to enable them to have an informed debate. So it comes down to the fact that without the name and a photograph public interest will be less. How much is impossible to say.”
iv) The right of the public to know if and when someone is released from custody that s/he had committed an offence as serious as this was appropriately met in RXG's case as he “ will not be released until after he is 18 and he can [then] be named”.
Following his conviction and sentence, RXG has remained in a secure children's home. He was not given a new identity on arrival and continues to use his given name to this day. In October 2017, RXG was the subject of an autism assessment which concluded that his “ social, communication, cognitive, motivational and sensory functioning and behaviours are commensurate with high functioning autism”. RXG became an adult last year and, in the ordinary course, he would be transferred to an adult prison. We understand that his transfer has been delayed pending the decision in this case.
Recognising that the reporting restrictions under section 45 of the 1999 Act would come to an end on RXG's 18 th birthday, representatives of RXG (then still a child) commenced these proceedings in the High Court on 13 June 2018 by Part 8 Claim Form. RXG sought an injunction the practical effect of which was to extend the reporting restrictions that had applied to RXG beyond his 18 th birthday. For all practical purposes, the relief sought was contra mundum rather than against any particular defendant. On 20 June 2018, Sir Brian Leveson P. granted an interim injunction until the hearing of the claimant's claim. The order effectively continued the existing reporting restrictions beyond RXG's 18 th birthday, pending the decision of the Court.
Any person or organisation that wished to become a defendant to the proceedings was required to apply to the Court by 20 August 2018. No such application was received. Although general notice of the application has been given to media organisations, none has sought to be joined to the proceedings or to make submissions to the Court as to the terms of the order sought by RXG. We have however received written submissions from the Press Association (the PA). In its submissions, the PA makes clear that it is an independent news organisation and does not represent or speak on behalf of the press as whole or any other media organisation.
The matter first came before this Court on 20 November 2018. We were concerned that RXG's transfer to an adult prison posed several questions about the management of RXG in such a prison and whether an anonymity order in the terms sought could be enforced as a matter of practicality. At a directions hearing on 7 December 2018, the Ministry of Justice (MoJ) was added as a defendant to the claim and the date for the hearing was set for 28 February and 1 March 2019. Further directions were given for the service of evidence.
The principal evidence relied upon by RXG is as follows:
i) Letters from RXG's local Youth Justice Service dated 29 May 2018, 10 August 2018, 19 September 2018 and 4 December 2018, and a witness statement from the Head of Home at RXG's children's home dated 4 December 2018. The later letters and the witness statement dealt with the practicalities of maintaining RXG's anonymity following a transfer to an adult prison. In the letter of 29 May 2018, the author addressed the risks to RXG (and his family) arising from a loss of anonymity:
“… the professionals and management involved in this case have convened and recognise that if [RXG]'s name were to be released into the public domain, there is potential for various repercussions which should be taken into account when considering this application.
An immediate concern that arises is the potential for [RXG] being placed at risk. Highlighting his identity may lead to him being targeted within the custodial estate from those who might perceive there to be a need for retaliation for his offence. Within most adult prison populations there is likely to be a representation of those who are not only minded to seek retribution, but also willing and able to cause harm to [RXG].
In addition to a risk to [RXG] directly, his family, in particular his parents, brother and younger sisters, are also likely to be identifiable as a consequence of his identification. This also potentially places them in harm's way by their association. This would cause further trauma to the family who have already had to resettle from their family home following [RXG]'s initial involvement in the Criminal Justice System. One specific area of concern regarding his siblings is around the education provision of his younger sisters. The school is already anxious regarding the situation and there is a strong likelihood that the naming of their older brother would lead to the girls being made to move school again to avoid the negative attention for the family and the school…
It appears that [RXG] is making steady progress though his sentence… Progress is certainly evident in [RXG]'s presenting attitudes and alongside this it is acknowledged that his behaviour within the secure estate has been extremely positive since very early in his sentence. A concern, therefore, is that identifying [RXG] has the potential to undo the progress made if he were to perceive...
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