Other powers to prevent reporting under the Contempt of Court Act 1981
The court can make various orders preventing information from being referred to in open court. Under s11 CCA 1981, the court may then order that that information should not be published by the media in connection with the proceedings. This power may be used to prevent the publication of a name of a witness, whether a child or adult, in connection with a court case where that person has been allowed to give evidence anonymously.
This provision will not apply to the name of a child defendant, as the court has no power to prevent the defendant’s name from being given in open court and therefore s11 CCA 1981 cannot apply to it. It may apply to other matters concerning the defendant, such as their address, where the court has ordered that not to be mentioned in open court. Under s4(2) CCA 1981 the court may also make an order that the publication of any matter is postponed where that is necessary to avoid risking substantial prejudice to the administration of justice in those proceedings. This is routinely used in criminal trials where there is press interest, to prevent reporting prejudicial material during the trial itself.
It is uncertain whether this power may be of use in the case where a defendant turns 18 mid-trial, to prevent the sudden identification of the defendant during the trial process. If it were to be used in this way, the court could only make the relevant order if satisfied that naming the defendant would risk substantial prejudice to the administration of justice, and then publication would only be prevented before the end of the trial.
Anonymity under the Human Rights Act - applications in the High Court
A court has a power under s6 HRA 1998 to grant anonymity where that is required in order to comply with a right under the ECHR right. The most relevant rights are Articles 2, 3, 8 and 10. This is usually used by the High Court for defendants who have turned, or are about to turn, 18 and therefore for whom there is no other power to be granted anonymity. So far, this has been used sparingly. It is sometimes described as the Venables jurisdiction, and is usually made contra mundum (against the world).
Article 2 (right to life) and Article 3 (protection from inhumane and degrading treatment)
If there is a real and immediate risk (a) to a person’s life or (b) of serious harm as a result of not being granted anonymity, then the positive duties under (a) Article 2 or (b) Article 3 ECHR respectively arises. Those duties require the authorities (here, the court) to take all reasonable steps which might be expected to avoid that risk. Although that is a qualified duty, it appears that in practice that if Article 2 or Article 3 is engaged, it would inevitably mean granting anonymity, regardless of the interests protected by Article 10 ECHR or other
There is an ongoing debate about this. The most recent High Court decision dealing directly with anonymity for child offenders followed the binding decision of the Divisional Court in RXG v Ministry of Justice and held that where there is a real and immediate risk of serious physical harm or death to the applicant, there was no question of that risk being balanced against the media’s Article 10 interests.
Article 8 (private life)
Naming a child may interfere with the child’s rights under Article 8 ECHR. Whether it actually does or not depends on the particular circumstances of the case. If there is an interference with Article 8, then the question of whether anonymity is required by Article 8 will depend on essentially the same balancing exercise as deciding whether anonymity is justified under the common law.
The starting point is the fundamental principle of open justice: everything that happens in the courts is public. In deciding whether a restriction on open justice by anonymity is justified, the court has to carry out a fact-specific balancing exercise. Central to the court’s evaluation would be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose – and, conversely, any risk of harm which its disclosure might cause to the individual concerned, to the maintenance of an effective judicial process or to the legitimate interests of others.