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What’s in a name? A High Court case on preserving the anonymity of child defendants

A (A protected party by his litigation friend, the Official Solicitor), B (A child by his litigation friend, the Official Solicitor) v Persons unknown [2016] EWHC 3295 (Ch)

In 2009 parties A and B were convicted of offences which caused public outrage. The original case was known as the ‘Eddlington’ case. The case brought before Sir Geoffrey Vos in the High Court was an application for a permanent order restraining the press and all other persons from publishing A and Bs names or identities following their 18th birthdays. There are limited cases of this nature therefore the outcome and the clarification of points relating to human rights and public protection are important.

Details

A and B had been sentenced to indeterminate detention in 2009.They served 7 years before a parole board recommended their release, believing them to be rehabilitated and therefore posing no further risk to the public. Following their 18th birthdays A and B would no longer be protected by section 39 of the Children and Young Persons Act and their identities would not be protected. The application was made under Articles 2 (right to life), 3 (prohibition of torture) and 8, (right to respect for private and family life) of European Convention on Human Rights scheduled to The Human Rights Act 1998.

Article 10 (right to freedom of expression) was cited in opposition to the application in respect of the press and various media organisations being unable to report on the identities and current arrangements for A and B. The media organisations were not joined as a defendant to the proceedings but a journalist was permitted to address the court and made representations in opposition to the application. If granted the would retrospectively ensure that the actual proceedings would also be subject to any anonymity order.

The court heard substantial evidence from psychologists, forensic services, legal representatives and those involved in the day to day management of A and B. The evidence was consistent in raising serious concern for the potentially destructive consequences to lifelong rehabilitative progress should their identities be revealed. In addition, the continued outrage and hostility still felt towards A and B by some sections of the community indicated that they would be at considerable risk of harm from potential vigilante groups and those seeking revenge. This further endangered both A and B’s family and impacted on their human rights, notably a younger sibling.

Sir Geoffrey Vos acknowledged the gravity of the risks outlined before the court and carefully considered them applying a proportionality test to possible contraventions of articles 8 and 10 of the ECHR. The identification of the perpetrators of grave crimes has been scrutinised before but on limited occasions. Following the case of Thompson and Venables (the Jamie Bulger case) where the identities of the defendants was not protected and a subsequent public hunt for the defendants led to  the mistaken identity of an individual thought to be one of them, and his subsequent suicide, was highlighted to show the potential risks of identities being revealed [paragraph 37].

The judge found that ‘in the extremely unusual circumstances of this case, the risks of violation of the claimants’ rights under articles 2, 3 and 8 of the ECHR have been shown to outweigh the important article 10 right to freedom of expression’ [paragraph 43]. The anonymity order was granted in order to protect A and B from harm, to allow their rehabilitative work to continue and facilitate them re-joining society successfully and safely. The order would in turn seek to protect their family and others associated with them. It was felt unlikely that public opinion of A and B and their crime would alter over time and for that reason they and anyone associated with them would always be at considerable risk if reporting their identities were allowed.

Commentary

The purpose of the youth justice system is to prevent offending by children.  This case highlights that for these two defendants their rehabilitation could only be effective if their anonymity was protected.

By Emma Checkley