Achieving open justice in criminal cases where the victim is the defendant’s own child can be challenging.
Courts often impose anonymity orders willy-nilly under Section 39 of the Children and Young Persons Act 1933 in such cases to prevent identification of the child.
Leaving aside the question of inappropriate orders, where the child is too young to be affected by publicity or is not actually concerned in the proceedings, one major problem is that such orders may result in undeserved anonymity for the adult offender as well as the child, contrary to open justice principles.
It is the broad ambit of a run-of-the-mill Section 39 order that causes the difficulty. But perseverance in challenging such restrictions can pay dividends, as the Lincolnshire Echo found this month in a child cruelty case.
The standard wording of a Section 39 order bans the media from revealing the name, address, school or any picture of the child concerned in the proceedings.
Significantly, it also bans the publication of ‘any particulars’that are likely to lead, indirectly, to the child’s identification.
There’s the rub. If the adult offender is named in press reports in accordance with open justice, and particulars of the allegation are included, such as ‘assault on a three-year-old boy in a bedroom”, the child victim is likely to be identifiable to at least those who know that the defendant has a young son – thereby technically breaching the Section 39 order.
However, the recent prosecution of 22-year-old Kelly Tollerton at Lincoln Crown Court for child cruelty after she left her two-year-old son home alone and went out with her boyfriend, showed the merit of journalists persistently chipping away at such widely-drawn Section 39 orders.
Parts of the media named Tollerton at the outset, riskily revealing that she was accused of leaving a child alone at a flat.
The judge initially said identifying her in reports would lead to the identification of the child, breaching the restriction.
But after renewed representations by the Press Association, joined by the BBC, the judge conceded that Tollerton could be named albeit that the mother-son relationship must not be.
The Lincolnshire Echo then tried a different tack. After the jury returned guilty verdicts, the paper persuaded the judge in written submissions to delete from the standard Section 39 wording the troublesome prohibition on revealing ‘any particulars calculated to lead to the identification of the child”.
With that snare gone, the media were free to identify both Tollerton and her relationship to her victim, giving the public a fuller picture of her offences and providing more open justice.
Reporters could still not name her son, who was aged four by the time of the trial, or publish his current address, photograph or any nursery details. But that had never been their focus.
It’s a reminder that asking for orders to be varied rather than lifted entirely can be a useful plan B tactic and that repeated representations about open justice will sometimes be allowed and worthwhile.
Nigel Hanson is a solicitor for the Foot Anstey media team. Email firstname.lastname@example.org