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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McKerry v Teesdale & Wear Valley Justices [2000] EWCA Crim 3553 (7 February 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/3553.html Cite as: 164 JP 355, [2000] Crim LR 594, (2000) 164 JP 355, [2001] EMLR 5, [2000] EWCA Crim 3553

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		Monday 7 February 2000

Monday 7 February 2000

1. THE LORD CHIEF JUSTICE: This is an appeal by case stated against an order made by the Teesdale and Wear Valley Justices sitting as a youth court in Bishop Auckland on 16 March 1999. The order which the appellant challenges is an order made under section 49(4A) of the Children and Young Persons Act 1933 dispensing in part with reporting restrictions.
2. The appellant was born on 17 November 1983. He is now aged 16. When he appeared before the justices on 16 March he was 15. He appeared to answer an information which charged him with taking a motor vehicle without consent, contrary to section 12 of the Theft Act 1968. He was represented by a solicitor. He pleaded guilty. The court then considered a written application from the editor of the "Northern Echo" to dispense with the reporting restriction in section 49 of the 1933 Act and seeking an order under subsection (4A) of that Act. The court allowed the application in part, and it is that which gives rise to the appeal.
3. The amended question which the court is invited to answer has a number of sub-paragraphs, but it is convenient to read the whole question at this stage. It is:

"Whether the Justices, before making the decision followed a procedure which enabled them to balance 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 may therefore present a danger to the community in which they live, and the need to avoid injustice to a young person, in that

(a) The Prosecution was not asked to open the facts of the offence, or the details of the antecedents of the Appellant, before the application was determined.

(b) The Justices failed to consider a pre- sentence report on the Appellant, recently compiled by the Probation Services.

(c) A reporter, present in court, was invited to make representations and the Justices improperly took into account and/or gave excessive weight to such representations, before exercising their power under the said section.

(d) The Justices failed to give reasons adequately or at all in allowing the application.

(e) The decision partially lifting the ban on publicity is perverse and wrong in law and unreasonable, in that the printing of a name alone is sufficient to lift the veil of privacy.

(f) They failed adequately or at all to consider the effects of the ruling upon the Defendant and his family.

(g) They failed adequately or at all to consider Article 8 of the European Convention on Human Rights."

4. Before turning to the detailed questions it is helpful to rehearse the course of proceedings. Before the hearing began the court was in receipt of a written application from the newspaper. The appellant then pleaded guilty. At that point the court was advised that the legal preconditions for the making of an order under section 49(4A) were now satisfied. The court at that point invited Mr Ian Lambing, a reporter employed by the newspaper group, to make any observation he wished, which he did in the presence of all parties. The solicitor representing the Crown Prosecution Service was then invited to make observations. He adopted a neutral stance, although he did remind the justices of the welfare principle embodied in section 44 of the Children and Young Persons Act 1933. The court then invited Mr Booth, the solicitor representing the appellant, to make representations. Mr Booth was a partner in the firm which had represented the appellant on a number of other court appearances. He was clearly on notice that such an application was likely to be made by the newspaper and he came to court armed with numerous press cuttings concerning the appellant. These cuttings made reference to 80 arrests of the appellant in 1995; to 45 arrests in 1998; and to 5 between 22 January and 10 February 1999. Mr Booth referred to the antecedents of the appellant supplied by the Crown Prosecution Service. I would infer that a copy of those antecedents was before the justices.
5. Mr Booth strongly resisted the making of an order under subsection (4A), and advanced a number of contentions which the justices record in their case. He submitted that the purpose of the newspaper in making the application was to "name and shame" the appellant and not to protect the public. He submitted that the appellant and his family had already been subjected to vigilante attacks and that the publishing of his name might trigger wrong- thinking people into the making of further such attacks. He submitted that the offending was not of a particularly serious nature or of a different nature from other offences brought before the court, and that the newspaper articles greatly exaggerated the number of crimes committed by the appellant. Mr Booth drew a contrast between the number of arrests to which the appellant had allegedly been subject and the number of his convictions.
6. The justices considered the matter and gave their decision which they record in the case in these terms:
7. "We announced our view that the appellant constituted a serious danger to the public and had shown a complete disregard for the law. These were our reasons for relaxing the reporting restrictions."
8. Before turning to the detailed complaints it is helpful to consider so far as necessary the statutory background. Section 49 of the 1933 Act so far as relevant provides:

"(1) The following prohibitions apply (subject to subsection (5) below) in relation to any proceedings to which this section applies, that is to say --

(a) no report shall be published which reveals the name, address or school of any child or young person concerned in the proceedings or includes any particulars likely to lead to the identification of any child or young person so concerned in the proceedings; and

(b) no picture shall be published or included in a programme service as being or including a picture of any child or young person concerned in the proceedings.

(2) The proceedings to which this section applies are --

(a) proceedings in a youth court;

....

(3) The reports to which this section applies are reports in a newspaper and reports included in a programme service; and similarly as respects pictures.

(4) For the purposes of this section a child or young person is 'concerned' in any proceedings whether as being the person against or in respect of whom the proceedings are taken or as being a witness in the proceedings.

(4A) 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 with the requirements of this section in relation to any proceedings before it to which this section applies by virtue of subsection (2)(a) or (b) above, being proceedings relating to --

(a) the prosecution or conviction of the offender for the offence;

(b) the manner in which he, or his parent or guardian, should be dealt with in respect of the offence;

....

(4B) A court shall not exercise its power under subsection (4A) above without --

(a) affording the parties to the proceedings an opportunity to make representations; and

(b) taking into account any representations which are duly made."

9. Attention should be drawn to section 44 of the same Act which provides:
10. "(1) 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."
11. It is also relevant to draw attention to section 39 of the Act which gives power to the court in relation to any proceedings to 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; ...."

12. The section goes on to enable the court to direct that:
13. "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."
14. That provision gives the court a power to restrict rather than a power to dispense with a restriction, but the proper approach to the exercise of that power was the subject of guidance in R v Leicester Crown Court, ex parte S (A Minor) [1993] 1 WLR, 114 and (1992) 94 Cr App R 153, 156, where Watkins LJ, giving the judgment of the court, said:
15. "In our judgment, the correct approach to the exercise of the power given by section 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 section 39 and it will, in our opinion, only be in rare and exceptional cases that directions under section 39 will not be given or having been given will be discharged."
16. These provisions 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 (Application No 24724/94) and V v United Kingdom (Application No 24888/94). These judgments draw attention to the Beijing Rules adopted by the United Nations General Assembly on 29 November 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.

...."

17. 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 20 November 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:
18. "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."
19. 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 reintegration and the child's assuming a constructive role in society.

2. 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."

20. Attention is also drawn to Recommendation No R(87)20 of the Committee of Ministers of the Council of Europe, which was adopted on 17 September 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;

...."

21. Attention may also be drawn to the European Convention on Human Rights which, in Article 8, provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence"

22. It goes on to provide in paragraph 2 so far as relevant:
23. "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of .... the prevention of disorder or crime ...., or for the protection of the rights and freedoms of others."
24. Article 8 is of course balanced by Article 10 which so far as relevant provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ....

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of .... the prevention of disorder or crime...."

25. 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. It is in my judgment plain that power to dispense with anonymity, as permitted in certain circumstances by section 49(4A), must be exercised with very great care, caution and circumspection. It would be wholly wrong for any court to dispense with a juvenile's prima facie right to anonymity as an additional punishment. It is also very difficult to see any place for "naming and shaming". The court must be satisfied that the statutory criterion that it is in the public interest to dispense with the reporting restriction is satisfied. This will very rarely be the case, and justices making an order under section 49(4A) must be clear in their minds why it is in the public interest to dispense with the restrictions.
26. I turn to the specific matters raised in the amended question, bearing in mind that the lettered sub-paragraphs all relate to the overall question. First, it is complained that the prosecution was not asked to open the facts of the offence or the details of the antecedents of the appellant before the application was determined. In my judgment this is a complaint of little weight on the facts of this case since the facts of the instant offence were of little relevance to the decision which the justices had to make. The charge had been read in full and they therefore knew the accusation made against the appellant and of course knew of his acceptance of guilt. The crux of the matter related to the appellant's previous record and his previous court appearances, which were the basis of the application to dispense. The justices were given the fullest information of those antecedents and of the appellant's background and were addressed at some length on the matter by the appellant's solicitor.
27. As to (b), it is complained that the justices failed to consider a pre-sentence report on the appellant recently compiled by the probation services. As a matter of fact that is true. It appears, however, that the justices were not told of the report which was no doubt in the hands of the appellant's solicitor. If he had wished the justices to pay regard to that report before reaching their decision he would no doubt have referred them to the report and placed reliance on it. It is in my judgment an insubstantial criticism to complain that the justices failed to consider something which they were never asked to consider.
28. In (c) it is complained that a reporter present in court was invited to make representations and that the justices improperly took into account and/or gave excessive weight to such representations before exercising their power under the section. The fact is that while subsection (4B) of section 49 requires the court to afford the parties to the proceedings an opportunity to make representations, there is nothing which precludes the justices from hearing a representative of the press. In practical terms it is likely, if such a matter falls for consideration at all, that the justices will wish to hear from a representative of the press either orally or in writing. The prosecution, taking a neutral approach in situations of this kind, will not ask the justices to dispense. The defence are most unlikely to do other than oppose it. It is not, as I understand, suggested that there was any objection to a written application and it seems to me entirely proper for the justices to have asked the reporter who was present in court if he wished to say anything. Of course, a reporter in that position does not enjoy formal rights of audience, but it is within the experience of this court, and of other judges in other courts, that on occasion the observations of the press are invited, and that can be a valuable process since a reporter may well have a legitimate point to make and one which will save the court from falling into error.
29. For my part I see nothing objectionable in the course which the justices here followed, and nothing whatever to suggest that they gave the reporter's observations undue weight. They heard all the parties' observations, they considered the matter and they reached their decision.
30. In (d) it is complained that the justices failed to give adequate reasons. As already recounted, the justices did announce that they were acceding to the request to dispense to the extent to which they did because they considered that the appellant constituted a serious danger to the public and had shown a complete disregard for the law. That was in my judgment enough to indicate the basis of the decision, and no doubt the justices had in mind that members of the public, if they knew the appellant's name, would enjoy a measure of protection if they had cause to encounter him. Certainly they would be on their guard if they met him and knew who he was, and would be slow to grant him any favours of which he could take advantage.
31. It is, however, as I think, the law that justices are not obliged to state reasons in the form of a judgment or to give reasons in any elaborate form. That was held by Judge J in R v The Southend Stipendiary Magistrate, ex parte Rochford District Council [1994] Env LR 1, 6. It represents the ordinary practice in magistrates' courts.Mr Braithwaite, who represents the appellant with conspicuous skill, submits in reliance on R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, 263 and [1994] 1 All ER 651, 671, that, in a case involving violation of a fundamental right, such reasons should be given in detail. In my judgment the reasoning which is called for depends both on the matter to be decided and the court by which the matter is to be decided. It is not usual for magistrates to give detailed reasons; nor is it usual for juries, who make very important decisions affecting human rights, to give any reasons at all. If an aggrieved party wishes to obtain more detailed reasons from a magistrates' court, then a request can be made to state a case, as was done here, and the justices have given their reasons at somewhat greater length. This is not in my judgment on the facts of this case a legitimate complaint.
32. It is then submitted in (e) that the decision partially lifting the ban on publicity is perverse, wrong in law and unreasonable in that the printing of a name alone is sufficient to lift the veil of privacy. The justices addressed that submission in their reasons where they said:

"We found that it was in the public interest that the appellant's name be published. However our order did not extend to allow publication of details of his address or school or any photographs. Having considered the appropriate criteria and the framework of past and recent legislation, it was apparent that whilst historically the legislators were inclined to maintain absolute privacy as regard the identity of young offenders, in more recent times there had been a shift away from that approach, evidenced by the implementation of section 45 Crime (Sentences) Act 1997. We regard our decision to allow partial publication as being in line with the spirit of the new legislation and do not think it was perverse. Our decision to allow partial publication as opposed to the total raising of reporting restrictions arose from due regard being paid to the appellant's welfare and his protection which was not outweighed totally in terms of public interest. We felt it was in the public interest to allow the appellant to be identified but also we thought it appropriate not to allow disclosure of his photograph, address or school to protect his welfare.

....

We accept that in allowing the appellant's name to be published, this partially lifts the 'veil of privacy'. We felt that it was in the public interest that he be identified by name because he constituted a serious danger to the public. However, we also took notice of the need to protect the appellant's welfare, given his age and therefore prevented disclosure of his photograph, address and school details."

33. It appears to me that the justices were very carefully and conscientiously exercising the power conferred by the statute. It was for them to make a judgment and exercise their discretion and they did so. They did not conclude that the public interest would be served by publishing the appellant's address or his photograph or details of his school. They did, however, consider that there was a public interest to be served by permitting publication of his name. This was in my judgment a balanced and judicious decision which cannot be stigmatised as perverse or unreasonable simply because the justices declined to decide wholly one way or wholly the other.
34. It may very well be, as Mr Braithwaite submits, that the details leaked out in the neighbourhood and area in which the appellant lived, even without the details which were withheld. It may equally be that there were those who were familiar with his identity without any publication being made at all.
35. It is complained in (f) that the justices failed adequately or at all to consider the effects of the ruling on the appellant and his family. But it is noticeable that the justices in the course of their reasons said:
36. "We also took into account the representations made by Mr Booth in relation to the effect lifting reporting restrictions would have in relation to the appellant and his family, particularly his mother and sister."
37. It may very well be that it was because of those considerations in part that the justices decided not to dispense with reporting restrictions totally.
38. Lastly, it is complained that the justices failed adequately or at all to consider Article 8 of the European Convention on Human Rights. That is perhaps a somewhat ambitious submission since no one drew the justices' attention, so far as one can see from the case, to Article 8 of the European Convention on Human Rights. It does however appear that the justices were fully alive to the public interest underlying the restrictions on reporting, and attention has not been drawn to anything which would have loomed large in their decision- making process had they been referred to Article 8, of which in the result they were neglectful.
39. Albeit this is, as already indicated, a power to be exercised with the greatest care, caution and circumspection, I would not for my part hold that the justices fell into any legal error in their approach to this case.
40. MR JUSTICE KLEVAN: I agree.
41. MR BRAITHWAITE: My Lord, I am legally aided.
42. THE LORD CHIEF JUSTICE: You would like a detailed assessment, of your costs, Mr Braithwaite?
43. MR BRAITHWAITE: I would, please.
44. THE LORD CHIEF JUSTICE: We shall certainly order that. Thank you very much indeed. We are most grateful for your arguments on this very important point.