Changes in arrangements for identifying under-18s involved in cases in adult criminal courts are now in force.
Section 39 orders have been replaced by s45 orders under the Youth Justice and Criminal Evidence Act.
The new orders are similar to s39s in some respects:
- They are not automatic, so you can name under-18s involved in adult court proceedings, unless the order is passed
- They can be passed on witnesses, victims and defendants
- The anonymity requirements are the same.
However, there are some important differences:
- The orders apply to all online publications, as well as print and broadcast media
- They will not be passed just because the person is under-18. Instead, the court will balance the child's welfare against the public interest and the media's right to report.
It remains to be seen which factors courts include as 'welfare'.
However it is fairly certain judges and magistrates will not usually consider that being 'named and shamed' by the media makes a positive contribution!
Courts can only remove or relax an order if they are satisfied that:
- it imposes a 'substantial and unreasonable restriction on reporting, and
- it is in the public interest.'
The media will only be able to challenge the orders on these grounds. Demonstrating public interest, alone, may not be sufficient. Case law associated with challenging s39 orders is now irrelevant.
The Ministry of Justice has told courts that when weighing up public interest, they must consider:
- The open reporting of crime.
- The open reporting of matters relating to human health or safety.
- The prevention and exposure of miscarriages of justice.
- The welfare of the victim or witness.
- The views of the victim or witnesss.
S45 orders will expire when the child or young person turns 18, or when proceedings finish if they turn 18 during the case.
Other changes mean that under-18 victims and witnesses can now be given lifelong anonymity in certain circumstances. This protection is already available to adults, although not often used.
The lifetime identity ban will come in the form of a s45a order, and may be passed if:
- the quality of their evidence, or
- the degree of co-operation they give to, say, the police (or anyone else preparing for the case), is likely to be diminished because the victim suffered fear or distress due to being identified.
When the court is considering the ban, the court will consider factors like:
- The nature and circumstances of the alleged offence.
- The witness' age, and social, ethic and cultural background.
- His domestic and employment circumstances.
- His religious or political beliefs.
- Any views he expresses.
- Any behaviour towards the witness by the accused, by members of his family, his associates, or any other person likely to be an accused or a witness in the case.
The restrictions can be partially lifted:
- In the interests of justice.
- If they are substantial and unreasonable, and it is in the public interest.
We haven't quite seen the end of s39 orders, though. They will still be used in civil and family proceedings, civil injunctions, and cases involving ASBOs and Criminal Behaviour Orders.