Last year, the Home Secretary said that a key part of the Government’s strategy for tackling anti-social behaviour was the use of publicity, and that the AntiSocial Behaviour Act would widen the ability of newspapers to publish ASBOs.
The Anti-Social Behaviour Act 2003, which came into force in March this year, was eagerly awaited. It appears that this anticipation was misplaced. While the Act makes it clear that the automatic restrictions under Section 49 of the Children and Young Persons Act (CYPA) do not apply to a report of the making of an ASBO, they still apply to the immediately preceding criminal trial. In addition, the court has a discretionary power to impose reporting restrictions under Section 39 of the CYPA.
Since March, magistrates have been as willing to grant Section 39 orders as they were before, and newspapers, the police and local authorities have made many applications to overturn them. Most recently, trainee journalist Emilie Bradshaw and the Lancashire Evening Post forced magistrates to lift restrictions preventing the newspaper from identifying a 16-year-old involved in an ASBO case, or reporting the nature of his crime.
ASBOs were first introduced in 1998 under the Crime and Disorder Act and can be granted against anyone over 10-years-old by councils, the police and social landlords. There is no automatic ban on a newspaper naming a person against whom an ASBO is made. However, details of the offence leading to the conviction cannot be reported unless they are repeated at the ASBO hearing.
The usual youth court anonymity still applies to the previous conviction and to any proceedings relating to a breach of an ASBO – although, at that point, an application can be made to the magistrates for permission to report full details, on the basis that it is in the public interest.
Court reporters need to be ready to challenge Section 39 orders at ASBO hearings. The Good Practice Guide issued by the Justices’ Clerks’ Society sets out how best to do this. It reiterates that, before a Section 39 order is made, the court should have a good reason, aside from age alone, to impose restrictions. A reporter can argue that it is in the community’s interest for the order to be enforced effectively, which would depend on the public being aware of the order and the identity of the person against whom it is made. This extends not only to the publication of their names and addresses, but to their photographs. The more abhorrent the behaviour, the more willing the court should be to allow identification, as a deterrent.
Usually, a court will accept that it is important the public have confidence in the effectiveness of the criminal process in tackling anti-social behaviour.
Increasingly, the police appear to be willing to challenge anonymity orders, and local authorities are now entitled to publish the identity of those against whom orders have been granted. With them onside, the chances of resisting Section 39 orders must be considerably enhanced.
Caroline Kean, head of media litigation at Wiggin & Co