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Lifting reporting restrictions for young people post-conviction – when does the excepting direction apply?

KL v R [2021 EWCA Crim 200

KL was convicted of murder in June 2019. At the time of the murder KL was 15. He was 16 at the date of conviction. Before trial an order was made under section 45(3) of the Youth Justice and Criminal Evidence 1999 (“the 1999 Act”) providing for KL to remain anonymous in any reporting of the proceedings. The order was removed post sentence but the decision was stayed pending appeal to the Court of Appeal. The Court of Appeal upheld the judge’s decision to remove the order and allow KL to be named.

Details

 KL was convicted of the murder of Ayub Hassan who was 17. The defence case was that KL and the victim were associates and had sold drugs together, and that KL was acting in self-defence when he stabbed and killed Hassan. The incident was captured on CCTV and appeared to show that KL had a knife in his hand as he entered the alleyway where the incident took place, and that Hassan was unarmed.

The order prohibiting KL from being named was made under section 45(3) of the 1999 Act before the start of the trial. On the morning of sentence,  an application was made by a representative of the media for the judge to remove the order in order to allow KL to be named. After hearing submissions from KL’s representatives the judge made an excepting direction under section 45(4) of the 1999 Act, permitting the press to name KL. The excepting direction was stayed pending an application for judicial review by KL’s representatives, who also sought leave to appeal against KL’s sentence of detention for life with a minimum tariff of 15 years on the grounds that it was manifestly excessive.

To hear the appeal the court sat as both the Court of Appeal, Criminal Division and as a Divisional Court.  The lengthy judgment deals with a number of complex legal issues arising from the appeal and concluded that:

  • KL’s application for leave to appeal against his sentence was refused
  • The Crown Court judge’s decision to make an excepting direction under section 45(5) of the 1999 Act was susceptible to judicial review in this case (although no decision was reached on whether this principle is more generally necessary)
  • The Court of Appeal, Criminal Division does not have jurisdiction to review an excepting direction, however in some situations the Court of Appeal, Criminal Division has the power to vary, amend or dispense with orders made by the Crown Court under sections 45(3), 45(4), 45(6) and 45(10) of the 1999 Act
  • The Court of Appeal, Criminal Division therefore has the power to make ancillary orders as regards reporting restrictions and excepting directions when dealing with a substantive appeal but it does not have freestanding appellate jurisdiction in relation to these orders
  • Procedural fairness required that KL’s representatives should have had more time to deal with the application for the removal of the excepting direction, and the sentence could have gone ahead with the application being dealt with at a later date
  • Nevertheless, the outcome for KL would have been the same if this had happened, and KL’s claim for judicial review was therefore dismissed
  • The stay of the excepting direction was removed allowing KL to be named

Commentary

 This case is a helpful clarification on the status and procedure for making and challenging an excepting direction, however its outcome is one which will no doubt cause some concern for youth justice practitioners.

The test for making an excepting direction which dispenses with any reporting restrictions imposed is either that it is in the interests of justice to do so or, under section 45(5) of the 1999 Act, the effect of the restriction is to impose a substantial and unreasonable restriction on the reporting of the proceedings and that it is in the public interest to remove or relax the restriction.

Representatives for the press stated that the conditions in section 45(5) were met as  it was in the public interest to be able to report in full the extent of gang related knife crime which is a matter of serious concern in London. The press also stated that the naming of defendants has a deterrent effect.

The Crown Court judge had little sympathy for the fact that KL’s representatives had very little notice of the application for an excepting direction, stating that these applications were not unusual. The Court of Appeal were more sympathetic and pointed to the media’s lack of compliance with the requirements of Part 6 of the Criminal Procedure Rules which sets out a detailed code for the imposition and removal of restrictions including those under section 45 of the 1999 Act.

The arguments put forward by KL’s representatives against the making of the excepting direction included evidence that threats had been made to KL’s family, in particular his siblings and their children, which had  resulted in the Local Authority rehousing them. Additionally, a witness from the Youth Offending Team (YOT) stated that the team had grave concerns about KL being named in the press as it would cause even greater conflict in the local community and they also raised concerns about KL’s welfare and prospects of rehabilitation.

 The Crown Court judge identified that in coming to a decision the balance was to be struck between the interests of the public in the full reporting of criminal proceedings and the desirability of not causing harm to a child concerned in the proceedings. Her conclusion was that the balance came down in favour of allowing the application to name KL.

In considering the claim for judicial review the court found that the judge directed herself correctly on the law and was aware of the substantial weight to be given to KL’s interests and welfare and that her decision was not wrong on the basis of the material before her, or even with the benefit of the additional material provided. The claim for judicial review was therefore dismissed and reporting of KL’s name was permitted.

The judgment shows the reluctance of the higher courts to interfere with a balancing exercise carried out by the Crown Court judge where the reasoning cannot be said to be wrong in law. The court emphasised that these applications are heavily case and fact specific which serves to underline the importance of anticipating and preparing to resist applications of this nature at the Crown Court as the Divisional Court will be reluctant to interfere with the decision of a Crown Court judge who has properly applied the law.