Children and young people who appear in Crown Court trials should have a statutory right to appeal against a judge’s decision to allow their identification, the Law Commission has recommended.
The proposal would mirror the right given to any “aggrieved person” – including the media – to appeal against a reporting restriction order made during a trial.
The right of appeal should be exercisable during a trial, concluded a report called The High Court’s Jurisdiction in Relation to Criminal Proceedings, which was published yesterday.
“Once a person’s identity has been made public, it cannot be re-hidden, and any harm done by identification cannot be undone,’the report said.
‘When such harm may be done to a child or young person, parliament has long taken the view that it is especially important to guard against its occurrence.”
Courts have the power to give anonymity to any child or young person under the age of 18 who is “concerned in the proceedings” under section 39 of the Children and Young Persons Act 1933.
A section 39 order generally prohibits the publication of the individual’s name, address and school, any picture of or including him or her, and any other information likely to lead to his or her identification.
Courts do have the power to vary the terms of an order – for example, a court can prohibit the publication of the juvenile’s name and address, but allow the media to report that the youngster is a named defendant’s son.
The Law Commission said protection of juveniles’ right to privacy under Article 8 of the European Convention on Human Rights “is sufficiently important for there to be a right of appeal against a ruling which allows a child or young person in a trial on indictment to be identified”.
It added: “We conclude, therefore, that there should be the possibility of challenge to the lawfulness of (a) a refusal to make a direction under section 39, and (b) a decision to discharge an existing direction under section 39, or (c) the terms of a direction, at any stage of the trial on indictment.”
The challenge should be to the Court of Appeal, Criminal Division “in line with other rights of challenge in recent years, especially where, as in this case, challenges will be rare; and secondly, that this kind of case is likely to require a review of the merits in order for the child’s welfare to be fully considered”, it said.
It was appropriate for the new right to go to the CACD, which dealt with appeals under section 159 of the Criminal Justice Act 1988.
The Commission also recommends that if someone indicates an intention to seek leave to appeal, the Crown Court should be treated as having made a section 39 order, which would remain in force until the appeal was granted, determined or abandoned.
If the Crown Court refused leave to appeal, until a specified period of time – it recommends a maximum of 48 hours – expired without leave being sought from the CACD or the appellant indicated within that period that he or she would not seek leave, or the Court of Appeal itself granted or refused leave.
The Commission also recommends that the decision of the Court of Appeal should be final, as it is with appeals under section 159 of the 1988 Act.
The Commission’s report also suggests allowing appeals to be launched during trials against a Crown Court’s refusal to make reporting restriction orders in cases involving some circumstances in which bail is refused, and in those cases in which a ruling could lead to a real and immediate threat to a person’s life.