Identifying children involved in crime

THIS post is based on a series of tweets I sent out from my @DBanksy account after a video was posted of an alleged bullying incident involving two schoolboys in Huddersfield.

The alleged victim is a Syrian refugee and the video quickly went viral. There appeared to be a lot of confusion about the legal and ethical issues surrounding the identification of the two boys, which I tried to clarify in the twitter thread.

I thought it would be useful to draw them together here.

Firstly, the law, because it’s pretty straightforward. There is no law stopping you from identifying a child caught in the commission of a crime, which comes a surprise to some, but that the way the law stands at the moment.

A child is not anonymous when they commit the crime; not when they are interviewed by police or arrested; not even when they are charged. They only get anonymity when they step through the doors of a youth court and S49 of the Children and Young Persons Act 1933 applies.

Here it is:

There is a law on the statute books that would close up this loophole and give a child anonymity as soon as an investigation has begun, that is Section 44 of the Youth Justice and Criminal Evidence Act 1999, and here that is…

That would give automatic anonymity to both the alleged offender and victim as soon as there was any police involvement. However, that section of that Act has never been activated, so the relevant law is the 1933 Act which only grants anonymity on appearance in youth court.

This could engage issues of privacy. A school field is, I would argue, a place where there is a reasonable expectation of privacy. However, it is also arguable in relation to the alleged bully, that this is a matter of public interest.

I’m not convinced how strong the public interest is in actually identifying the alleged bully is here. And it certainly does not defend identification of the alleged victim.

So, on to ethics. The Editors’ Code of Practice, as administered by has a few things to say about children. Firstly Clause 6, here…

Then Clause 9 (iii) here…

It is possible to publish material which might otherwise breach these clauses, if it can be show it is in the public interest to do so, and detecting or exposing crime *is* a matter of public interest as defined by the Code.

However, editors are expected to demonstrate an exceptional public interest if they want to override the normally paramount interests of children under 16.

With regard to Clause 9 (iii) anonymity only applies after arrest, and as that has not happened here, as far as we know, does not yet apply. It can also be argued that the identity of the alleged offender is already in the public domain.

So, to sum up, legally you can identify the two boys. Ethically I think it is arguable that you can identify the alleged offender because his identity is already in the public domain. I do not think you should identify the alleged victim.

This is, of course, all a little academic as they have both been identified widely on social media, where no ethical codes exist and where the law often struggles to gain any traction either. Here endeth the lesson.

If all this is useful, please feel free to share widely, but please credit my site and link back. Remember I am available to run training, in person or online, in this and a wide range of media law matters – see details on my training page. I also welcome writing commissions on this or any other media law topic, drop me a line at davidbanksmedialaw@gmail.com.

Worrying orders of the court

A CASE in the magistrates court on the Isle of Wight should cause concern for reporters covering the courts.

The case, detailed here in Hold the Front Page, concerned neglect of a child, and at an earlier hearing magistrates had imposed a S39 order under the Children and Young Persons Act 1933 anonymising the child.

This has the effect of anonymising the mother of the child as well, because you cannot practically report the case in such circumstances and name the mother, because it will lead to the identification of the child.

The Isle of Wight County Press wanted to challenge the order, as it is usually accepted that very young children, in they case they were one and two, are too young to be affected by negative publicity and do not need such an order to be made. This is set out quite clearly in the Judicial College’s publication – Reporting Restrictions in the Criminal Courts – every court reporter should have a copy of it.

However, as is detailed in HTFP, the reporter in court was ‘put off’ by the clerk who said there were no new facts to warrant reconsidering the order. Note to reporters – do not be ‘put off’ insist on the court at least considering your request.

In my view what is concerning about the case though is not the court’s failure to hear the paper’s objection, but it’s reasons for imposing the order in the first place.

The magistrates placing the order were concerned that online publication mean that a very young child might be subject to adverse effects of publicity at some time in the future.

This line of reasoning is not new. I have heard it expressed now a number of times by judges and at Law Commission seminars. There is clearly a concern that the cliche of today’s newspaper being tomorrow’s chip-wrapper no longer holds true and that online archives are changing attitudes.

I expect this issue to emerge again and again in years to come and the media need to come up with a good answer, or the courts will continue to shut down their reporting.

My thanks to Rob Preece @RobPreeceOnline for pointing this case out to me.

Journalists in the dock

EDITORS have always had many responsibilities but one that perhaps not everyone appreciates is criminal liability for what their paper publishes.

For certain offences it is not the newspaper company that ends up in the dock, but the editor, facing a conviction for a criminal offence.

There are a number of offences that they can commit in this way – contempt of court; identifying a victim of a sexual offence, or identifying a child in proceedings who has been given anonymity by the court.

It is this last offence that Brian Aitken, outgoing editor of The Journal, Trinity Mirror’s regional morning newspaper published out of Newcastle, was convicted of earlier this month.

His paper reported on a sexual offence committed by a teacher. In such cases the anonymity given to the victim is statutory sexual offence anonymity.

This would mean the victim’s name and address would be forbidden and any other detail likely to identify her – so her school if it is a reasonably large one, is unlikely to be an identifying detail.

However, Mr Aitken and his journalists did not know that an order under Section 39 of the Children and Young Persons Act 1933 had also been placed on the child victim. Section 39 is similar in its scope to sexual offence anonymity, but it also expressly forbids the naming of the school.

So The Journal, and Mr Aitken, had unknowingly committed an offence. A decision was taken to prosecute Mr Aitken and he was convicted of the offence and fined £1,600, and so now has a criminal record that would show up on a CRB check and could interfere with his life if, for example, he applied for a U.S. visa for a holiday.

On the face of it, an editor who publishes information in violation of a court order might get little sympathy. But it’s far from straightforward.

Firstly, it is not as easy as you might think to find out whether a court has made an order in any particular case.

There is no central record kept of such orders, and certainly no online database to check. You are reliant on the diligence of court staff in finding such matters out, and that is variable to say the least.

This is despite the fact that any court making such an order is under an obligation to communicate it to anyone reporting that hearing, or any subsequent hearing, in writing. This was established in the case of R v Central Criminal Court ex p Godwin and Crook which said that any section 39 order must be specific in who it applies to; must be in writing and must be communicated to any media who are not at the hearing where it was made.

The booklet ‘Reporting Restrictions in the Magistrates Court’ – effectively a statement of the courts’ own rules for making restrictions reiterates this and says: “When a discretionary restriction order is made, it is desirable that the media are given every assistance to comply with it.

Magistrates may, therefore, think it helpful to say that if there are any particular problems arising from the making of the order which the media wish to raise in a written note, further guidance will be given in open court.

Every court should have a proper procedure for ensuring that adequate steps are taken to draw any discretionary restriction order to the attention of media representatives who may not have been in court when the order was made and the court should ensure that the procedure has been followed.”

In my experience magistrates nod at the press bench and mutter ‘we make the usual order’ – no written copy, no communication of the order to subsequent hearings.

I know of courts that have been so lax in this that when a reporter queried whether an order had been made, the court was reconvened by the judge specifically to make an order on the case, which he had forgotten to do during the proceedings.

So, if we are going to see prosecutions like this take place and a strict adherence to the rules, then perhaps newspapers ought to insist on a similar adherence to the letter of the law.

Maybe they should insist that every order, every Section 4, Section 11 and Section 39 is given to them in writing, setting out exactly what restrictions the judge or magistrates have in mind.

We have seen similar prosecutions of editors under sexual offence legislation where their paper has accidentally put too much detail in about a victim, risking identification.

This action is a world away from the deliberate actions of a mob targeting a victim, as we saw in the case of Ched Evans, yet in law they are treated as the same offence.

This practice of prosecuting editors and sometimes journalists for crimes of publication is, in my view, wrong.

Very often they are strict liability offences where absence of intent is irrelevant to the prosecution.

These laws stem from an era, probably fictional, when the editor sat at the hub of the newspaper, examining every word they published. As for the deterrent effect of such prosecution, do they seriously imagine that editors across the country sit poised ready to identify victims?

A far more effective deterrent would be proper communication of court orders to all media, as set out above. The offences, rather than crimes, could be dealt with as civil matters with damages for the victim – which at least one victim has pursued, receiving more in damages than she did as criminal injuries compensation.

Today, in a country with a supposedly free press, we are seeing too many journalists’ homes raided at dawn, too many held on long bail, and too many in the dock.

It is time the practice of criminalising editors and journalists for accidentally breaching anonymity was abolished.

Nigel Evans, contempt and clues about alleged victims

WAS Nigel Evans flirting with contempt of court by so publicly protesting his innocence on TV at the weekend?

That was the question I was asked after he had appeared before cameras to deny the allegations of rape; talk of his shock that they had been made and thank his constituents and friends for their support.

We have seen this sort of statement often recently, especially by those caught up in Operation Yewtree and other inquiries stemming from the Jimmy Savile scandal (although it must be pointed out Evans’s case is in no way linked to those wider inquiries.) Celebrity emerges from home after being released on bail to make a statement to camera insisting they are not guilty, that they will be proved so in due course and to thank their family, friends and fans for their support

Could such a statement be a problem legally? Well there is no doubt that contempt of court is a risk now. Evan has been arrested, so proceedings are active for the purposes of the contempt of court act. That means that nothing should be published or broadcast now which could cause substantial risk of serious prejudice to any future proceedings.

Will claiming you are not guilty create such a risk? If it is simply an insistence you are not guilty, then no. Thanks expressed for support are also fine. Remember any jury will be told on the first day of trial that the defendant is presumed innocent.

I do think that Stuart Hall’s recent statement, which went beyond proclaiming his own innocence to ask why those making the allegations had not reported them before, skirted the edges of contempt. And I think Mr Evans was unwise to talk about detail of one of his accusers and his recent contact with him.

I don’t believe it cleared what is quite a high bar for a contempt prosecution, even with the current Attorney General Dominic Grieve’s seeming enthusiasm for prosecution.

However, I do think what he said could be an identifying detail about one of the complainants. They get anonymity for life once they make an allegation of rape and that forbids publication of any detail that would identify them as the victim of a sexual offence.

So if anyone, not necessarily everyone, can work out who the victim is from a detail you have published or broadcast, then you are guilty of an offence, and a sexual offence at that. The detail does not have to be obvious things like the complainant’s name or address, just some fact that enables someone, perhaps someone who knows them, to put two and two together and identify them as the victim.

Victims’ anonymity lasts a lifetime and can only be lifted with their consent, that of a judge, or if they are subsequently charged with an offence in relation to the complaint such as perjury or perverting the course of justice. Any decision to prosecute is made by the Crown Prosecution Service in this instance, not the Attorney General.

 It is likely we will see more statements like that of Mr Evans, but if such accused do no want to add to their list of legal woes, they need to take care what they say