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Section numbers from the book are used when relevant. The book should be read too. Its content provides fuller explanations and context.
10.2.6 Admission to youth courts
Case study: In February 2017 District Judge Julia Newton banned a Press Association (PA) reporter from a hearing at Highbury Corner youth court, after the defence said the reporter’s presence would be detrimental to the welfare of the defendant, a teenager accused of assault and possessing an offensive weapon. After PA protested about its reporter being excluded, a Judicial Communications spokesman said of the judge: ‘In hindsight she realises this was an error and that she had no legal authority to exclude the press and they should have been allowed to attend under section 47 of the Children and Young Persons Act 1933.’ The prosecutor did not challenge the defence application for the reporter to be kept out. A Crown Prosecution Service spokesman said, of that lack of a challenge, that the CPS did not believe that its general guidance to prosecutors was correctly applied (Media Lawyer, 28 March 2017).
10.3 Section 49 automatic restrictions on identifying persons aged under 18
Case study: In October 2016 Thomas Sinclair, editor of the Pembrokeshire Herald, was fined £500 at Llanelli magistrates’ court because a Herald report named a 17-year-old defendant when referring to a youth court case, breaching section 49 of the Children and Young Persons Act 1933. Sinclair admitted this. The 17-year-old was the skipper of a trawler, who had been fined in February that year by Haverfordwest youth court for local bye-law offences because of an accident in November 2015 when the trawler ran onto rocks. The prosecutors in that case—Milford Haven Port Authority—issued a press release which referred to the fines and identified the trawler but did not name the defendant or specify that the Haverfordwest magistrates were sitting as a youth court. The Herald’s report, based on that release, included the teenager’s name. Mr Sinclair, 37, of Hamilton Terrace, Milford Haven, said the teenager had been widely identified as the trawler’s skipper in coverage of the accident, and added: ‘I thought that because it was a private prosecution brought by MHPA it was in the adult court’. District Judge Neil Evans told Sinclair that he ought to have made proper inquiries, saying: ‘This was a cavalier approach to reporting.’ The skipper was named in coverage of Sinclair’s conviction because by then the section 49 anonymity had lapsed as he had turned 18 (Holdthefrontpage and Western Telegraph, 6 October 2016; Media Lawyer, 11 October 2016).
10.3.1 No identifying detail should be published
Example of section 49 anonymity
Suppose that an inexperienced reporter files the following copy from a youth court hearing. It is accurate. But the reporter has forgotten that, because of the automatic anonymity provision in section 49 of the Children and Young Persons Act 1949, anyone aged under 18 concerned in the proceedings should not be identified in what is published, by any detail. This law is explained 10.3 in McNae’s.
A 15-year-old youth stole an aquarium of piranha fish from his neighbour, and dared a girl to put her hand in the tank.
Robert Hedde, of Dodd Close, Probetown, denied burglary, but was convicted by the town’s youth court.
He smashed a window to steal the fish tank, carried it a mile to his father’s allotment in Old Park, and hid it in a nearby shed.
The neighbour Alan Udrington, a prosecution witness, told the court that Hedde had often visited him to see the four fish.
‘Robert seemed fascinated by them. When police told me they were sure he was the thief, I was shocked because his family have been great neighbours, and his dad is a lay preacher at the Baptist church.
‘I have kept piranhas for years. They have a fearsome reputation as flesh-eaters when in shoals in South American rivers. But a few in a tank are cute,’ Mr Udrington said.
Police sergeant Jean Greenwood told the magistrates: ‘A local parent rang us in great concern because his daughter had told him that a youth known locally as ‘Headcase’ had charged her money to see the piranhas in a shed near his dad’s allotment, and dared her to put hand in the tank. But by the time we located the shed in Old Park the fish were all dead.’
Sgt. Greenwood said that Hedde’s fingerprints had been found on the aquarium’s glass, and a dead piranha had been found in his bedroom.
Hedde told police his fingerprints were found because he too had paid to see the fish, the court heard.
But 14-year-old Helen Evans, of Else Lane, a prosecution witness, told it he had charged her £1 to enter the shed, and challenged her to put her hand in the tank, telling her it would be safe if she did so for only 10 seconds. She had refused. The court saw video footage from her mobile phone of Hedde putting fish food in the tank. In the video he said he had carried the tank to his father’s allotment and then another few yards to the shed.
The court made Hedde subject to a ‘referral order’, which means he must do unpaid work in the community.
The copy will need to be re-written as follows, to give Hedde and Evans anonymity. Assume that Probetown has about 50,000 residents (and therefore a good number of 15-year-old males and 14-year-old females).
A 15-year-old youth stole an aquarium of piranha fish from a Probetown house, and dared a teenage girl to put her hand in the tank.
The youth denied burglary, but was convicted by the town’s youth court.
He smashed a window to steal the fish tank, and carried it a mile to a shed.
The owner of the fish Alan Udrington, a prosecution witness, said: ‘I have kept piranhas for years. They have a fearsome reputation as flesh-eaters when in shoals in South American rivers. But a few in a tank are cute.’
Police sergeant Jean Greenwood told the magistrates that a parent had rung the police in great concern after his daughter told him the youth had charged her to see the piranhas in the shed, and had dared her to put her hands in the tank. But by the time police located the shed the fish were all dead, Sgt. Greenwood added.
She said that the youth’s fingerprints had been found on the aquarium’s glass, and a dead piranha had been found in his bedroom.
The youth told police his fingerprints were on the aquarium because he too had paid to see the fish, the court heard.
But a 14-year-old girl told it he had charged her £1 to enter the shed, and challenged her to put her hand in the tank, telling her it would be safe if she did so for only 10 seconds. She had refused. The court saw video footage from her mobile phone of him putting fish food in the tank. In the video he said he had carried the tank to the shed.
The court made the youth subject to a ‘referral order’, which means he must do unpaid work in the community.
10.5 Section 39 reporting restrictions in civil proceedings and coroners’ courts
Case study: In 2014, Brian Aitken, then the editor of the Newcastle Journal, was fined £1,600 by a district judge after admitting it breached a section 39 order by identifying in a report of a court case the school attended by an alleged victim of crime, who was aged under 18. Publisher NCJ Media Ltd, part of Trinity Mirror plc, also admitted breaching the order and was fined £2,160 on that charge and a further £2,160 for a report of the case, published in sister title the Chronicle, which too had identified the school. The judge also ordered NCJ Media Ltd to pay £5,000 costs. The defendant in the reported case was a woman teaching assistant at the school, who appeared in a magistrates’ court charged with a sexual offence involving a female pupil. As the charge was a sexual offence, the alleged victim was automatically entitled to lifelong anonymity under the Sexual Offences (Amendment) Act 1992 – law explained in 11.1- 11.3 in McNae’s. However, the magistrates also gave the pupil anonymity by making an order under section 39 of the Children and Young Persons Act 1933, which was at that time used in criminal courts – see 10.4.1.2 in McNae’s. But Aitken did not know the section 39 order had been made. The Journal felt that the school, which had around 1,000 pupils, was big enough to be named in its report without this identifying the pupil, who was not identified in any of the reports. But Aitken and NCJ Media were ruled to have breached the section 39 order because the reports named the school. The High Court later dismissed Aitken’s appeal against the district judge’s ruling on the liability of editors, a ruling which had led to Aitken changing his plea to guilty (Press Gazette, 20 November 2014; Media Lawyer, 20 November 2014 and 23 April 2015; Brian Aitken v DPP [2015] EWHC 1079 (Admin)).
10.7 Anti-social behaviour injunctions and criminal behaviour orders
Law creating a new type of injunction banning anti-social behaviour came into force on 23 March 2015. These injunctions, created by Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, replaced the ‘stand-alone’ version of the anti-social behaviour orders known as ASBOs. An injunction made under Part 1 is referred to officially as an ‘anti-social behaviour injunction’ (ASBI), though colloquially it may be referred to as an ASBO. The injunction is ‘stand-alone’ because, as was the case with an ASBO, it can be imposed on a person even though his/her anti-social behaviour has not led to a criminal conviction.
In the context of housing—for example, to deter anti-social behaviour in a residential street or on an estate—a county court or (if at least one of the troublemakers is aged under 18) the youth court may impose an ASBI banning conduct which has caused or is likely to cause ‘nuisance and annoyance’. Various bodies, including police and local authorities, can apply for an ASBI to ban, for example, a child or young person from residential streets where they have been creating a nuisance. But in non-housing contexts—for example, where an individual is consistently behaving badly in a shopping mall—the threshold for imposing an ASBI is higher, in that the behaviour must have caused or be likely to cause ‘harassment, alarm or distress’.
These injunctions are, as ASBOs were, civil orders. Breaching the injunction is a contempt of court—and the maximum punishment for someone aged 14–17 is three months’ detention.
10.7.1 Can a child or young person in ASBI proceedings be identified?
- The default position is that a child or young person concerned in youth court proceedings which consider an application for an ASBI—which are civil proceedings—will not have automatic anonymity in law as regards reporting of the ASBI proceedings, whether or not the ASBI is granted.
This position is set out in section 17 of the 2014 Act, which for ASBI proceedings disapplies the anonymity in section 49 of the Children and Young Persons Act 1933 that would—as 10.3 in McNae’s explains—otherwise apply to reporting of youth court cases.
But a youth court, or any other court, when dealing with an application for an ASBI, may give anonymity to anyone aged under 18 who is ‘concerned in the proceedings’, by making an order under section 39 of the 1933 Act banning the identification of that individual in reports of those ASBI proceedings. For detail about section 39 orders, see 10.5 in McNae’s.
Also, the section 49 automatic anonymity does not apply for a child or young person as regards a report of proceedings in which he or she is accused of or admits breaching an ASBI (which too are civil proceedings). This is because section 17 of the 2014 Act makes clear that section 49 anonymity does not apply in respect of any ASBI proceedings. But the court may bestow anonymity for that individual as regards such reports by making a section 39 order.
The Youth Court Bench Book explains ASBIs - see Useful Websites, below. Remember: The section 49 anonymity will apply, unless lifted, in respect of any youth court proceedings concerning a criminal charge (unless the charge alleges breach of a criminal behaviour order, see below).
Ch. 16 in McNae’s explains how a journalist can argue in court against imposition of a reporting restriction. The additional material for ch. 16 on www.mcnaes.com provides arguments he/she can make that a person aged under 18 made subject to an ASBI should be identified in a report of that hearing or of a hearing considering an alleged or actual breach of an ASBI.
10.7.2 Criminal behaviour orders
A ‘criminal behaviour order’ (CBO), which can only be imposed on an individual after he/she has been convicted of a crime, replaced another type of ASBO. The relevant CBO law is in now in the Sentencing Act 2020. A CBO can be imposed for the purpose of preventing an offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person.
An application to a court for a CBO to be imposed on someone can only be made by the prosecution. A CBO may be imposed on a child or young person after—for example—he/she is convicted of shoplifting or taking a car without the owner’s consent (‘joy-riding’), to ban him/her from entering shops or interfering with cars. Breaching a CBO is a criminal offence. A child or young person convicted of a serious breach could be given a training and detention order.
10.7.2.1 Anonymity in reports of hearings to decide whether to impose a CBO
Any criminal court can impose a CBO, but as regards a person aged under 18 this will be a youth court. Section 332 of the 2020 Act provides that:
- if—and only if—the youth court makes a CBO against the person, the automatic anonymity in section 49 of the 1933 Act automatically lapses as regards that person ‘in so far as the proceedings relate to the making of the order’, which allows media reports of the CBO proceedings to identify him/her.
- but the youth court has discretion to preserve anonymity for him/her by making an order under section 39 of the 1933 Act.
The section 49 anonymity will continue to apply for any witnesses in the CBO proceedings who is aged under 18 and will still apply for the defendant in respect of the earlier proceedings in the youth court in which he/she was convicted of an offence (for example, the offence which led to the prosecutor’s application for a CBO to be imposed), unless the court has lifted the section 49 anonymity. The court should—if section 49 anonymity remains in place for those earlier proceedings —say enough in the CBO proceedings to explain what criminal conduct led to the CBO being imposed, if it is imposed.
The journalist could remind the court clerk that the Justices’ Clerks’ Society issued guidance to its members that when a court draws up an ASBO it should include details of the anti-social behaviour which led to the order being made, so this guidance should hold good for CBO proceedings. See Useful Websites, below, for this guidance.
A journalist could argue that it would be for the good of the community for the section 49 anonymity to be lifted ‘in the public interest’ in respect of the criminal conviction which led to the CBO (for example, if the offending was serious – for such ‘public interest’ factors, see 10.3.5 and 16.13 in McNae’s). The journalist could argue that for the same reason section 39 anonymity should not be bestowed on the individual as regards the CBO proceedings. See the additional material for ch. 16 on www.mcnaes.com for specific arguments that can be made against anonymity being provided for a person aged under 18 who is subject to a CBO.
10.7.3 No automatic anonymity for alleged breaches of CBOs
A child or young person alleged to have breached a CBO may be charged with this as a criminal offence, which will be dealt with at a youth court, which can impose a fine and/or a detention and training order (see in 10.2.2 in McNae’s) if the defendant is convicted. Section 339 of the 2020 Act says that the anonymity under section 49 of the 1933 Act for defendants aged under 18 appearing in a youth court does not apply to those accused of breaching a CBO.
- So the media can identify the defendant when reporting a youth court’s proceedings for alleged breach of a CBO, whether or not it convicts him/her of such a breach. But any witness aged under 18 retains the automatic anonymity under section 49, and the defendant automatically retains section 49 anonymity in respect of a charge for any other offence being dealt with in that hearing.
- A youth court can decide to give the defendant anonymity in respect of the proceedings for alleged or admitted breach of the CBO. Section 339 of the 2020 Act gives a youth court discretionary power to bestow anonymity on a defendant accused of breaching a CBO, by the court making an order under section 45 of the Youth Justice and Criminal Evidence Act 1999, if the defendant is aged under 18. Section 45 anonymity is explained in 10.4 in McNae’s in the context of adult courts, but the nature and normal scope of a section 45 order is the same when used by a youth court in proceedings for alleged or admitted breach of a CBO.
Section 339 of the 2020 Act says that if a court does give such a defendant anonymity under section 45, it must give its reasons for doing so. Again, a journalist covering the hearing could argue that the defendant should be named in a report of the case —see the additional material for ch. 16 on www.mcnaes.com for specific arguments that can be made.
Useful Websites
Justices’ Clerks’ Society, Good Practice Guide on ASBOs
www.judiciary.uk/publications/youth-court-bench-book-and-pronouncement-cards/
Youth Court Bench Book