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Judicial Review on reporting restrictions for children in criminal proceedings

Re JKL’s (A Minor) Application for Judicial Review

The applicant was 15 when he was arrested as a suspect in an alleged hacking of TalkTalk customers. He was released on bail without charge and his identity was published in various media, including the national press. The High Court held that the Department of Justice’s failure to provide the applicant with pre-charge anonymity was not discriminatory so as to amount to a breach Article 14 of the European Convention of Human Rights [‘ECHR’].

Details

A court can and normally does prohibit the publication of material that may identify a child charged with a criminal offence. However, there is no statutory power restricting the publication of the identity of a child arrested in relation to, but not charged with, a suspected offence. 1 The applicant argued that the different protections for children pre and post charge was discriminatory and contrary to Article 14 of the ECHR.

The Court approached the question of discrimination by reference to Lady Black’s four-stage approach in Regina (Stott) v Secretary of State for Justice.2 First, for Article 14 to be engaged, the alleged discrimination must fall within the ambit of a Convention right. Second, the different treatment must derive from one of the characteristics listed in article 14 or the applicant’s ‘other status’. Third, the claimant and person who is treated differently must be in analogous situations and forth, there must be no objective justification for the different treatment.

There was no dispute that the applicant’s situation engaged his Convention rights. Article 6 of the ECHR expressly provides for a derogation from public justice, ‘where the interest of juveniles or the protection of the private life of the parties so require’ and Article 8 provides for a right to respect for [an individual’s] private and family life’ [17].

The Court considered whether the different treatment complained of by the applicant could said to be derived from his ‘other status’ as provided by Article 14. The Court considered the case law on the definition of ‘other status’, much of which is concerned with how difficult it is to define the concept. In light of the ‘liberal and broad interpretation’ adopted by the courts, the judge concluded that the cause of the discrimination fell within the remit of Article 14 [50].

However, the Court held that the applicant’s position was not analogous to that of children charged with criminal offences. There was no challenge to the presumption that children should be protected from publicity during court proceedings and indeed the respondent argued that the principle of open justice made it ‘necessary to have statutory intervention to protect the interests of minors’ [60]. The Court agreed: ‘given the presumption of public justice the statutory intervention [restricting identification] is necessary to protect the Article 6 and Article 8 rights of children who are brought before the courts. Otherwise their identity will become public’. However, the judgment continues, ‘that is not the case with children who are in the ‘pre-charge’ situation’ [70].  The risk post-charge that a child’s identity will be made public derives from the principle of open justice and the consequent public scrutiny of court proceedings. Pre-charge, the risk of identification is significantly less such that the position is not analogous.

Commentary

The respondent argued that children arrested, but not charged with offences, did not require additional protection of their right to private life as afforded to children once charged [61]. But clearly common law protections were not adequate in the instant case. In the instant case, the Court’s focus upon the risk of identification, rather than the fact of it, potentially protects rights in theory rather than practice.

 

 

 

 

 

 

 

  1. 1. Section 44 of the Youth Justice and Criminal Evidence Act 1999, which provides for pre-charge anonymity for children, is not yet in force  (back)
  2. 2. [2018] 3 WLR 1831  (back)