Naming child defendants – What do judges have to consider when waving anonymity?

Chloe was invited to speak last week on the Podcast “The Trial - Brianna Grey” to discuss these issues. It takes listeners behind the headlines into the courtrooms of some of the most significant criminal cases, bringing them details as the evidence unfolds, examining key moments, and carrying out interviews with detectives, victims, and experts.

“Children between the ages of 10 and 17 appearing before the criminal courts will automatically be the subject of reporting restrictions. This means that journalists can report on proceedings, including the trial, but they cannot name the young people involved or publish any details that might lead to their identity being revealed. Nevertheless, not every individual under the age of 18 retains their anonymity.

“When a young person commits a serious crime, it understandably attracts the public’s interest, as was the case with Brianna Ghey’s tragic murder. Members of the public are understandably curious as to who these defendants are and look to the press to provide them with those details.

“Media outlets can apply to the court to have the reporting restrictions lifted. In the case of Brianna’s murder, that is precisely what happened, with several interested parties, including the Press Association and the BBC, making representations to lift the restrictions. Once an application is made, the Judge must then decide whether to grant the media’s request and allow the defendants' names to be reported or to enable them to retain their anonymity.

“The decision to lift the reporting restriction is a difficult balancing act for a court in which several important considerations must be taken into account.

"The starting point is that criminal proceedings are designed to be as transparent as possible under the principle of open justice. Prohibiting the press from identifying a defendant can elicit a very adverse reaction from the wider community. Alongside this, it may also be the victim’s family's wish that the defendant be publicly named. The wishes and feelings of victims are, of course, important. As we saw in this trial, Mrs Justice Yip addressed Briana’s family directly where necessary, saying that their views were an important consideration in her decision-making.

“On the other hand, the court must consider the welfare of the defendant and the aim of the youth justice system. Here, their rehabilitation is a key consideration. The hope is that when young people are released from custody, they can reintegrate into society and will desist from further offending. This might be put at risk if their name is published in the public domain.

“We now live in a digital age so once an individual’s name is made public, it becomes that much harder for them to remain anonymous following their release from prison. With the internet being so readily accessible, anybody would be able to trace their name back to the crime that person has committed, even if it is years after they have completed their sentence.

“Every time they apply for a job, for instance, their prospective employer would be able to put their name into Google and find out they had been convicted of a criminal offence. This could place that person at risk of substantial harm if the crime is grave, but it also means opportunities which might assist in their rehabilitation, like getting a job, are impossible to secure.

“There are typically several other reasons why young people ought to remain anonymous that must be considered. If that person is publicly named and eventually is sent to either a young offender's institution or an adult prison, they could easily find themselves placed at risk from other inmates. Sadly, these institutions are often very hostile environments.

“We also know that historically, there are some exceptional cases where child defendants’ names are made public and then they are subsequently provided with new identities to ensure they are protected. These efforts did not guarantee their safety as has been the case with Jon Venables and Robert Thompson.

“Alongside this, it is not only the child in question that the Judge has to keep in mind. The defendant’s friends and families may also face a significant impact if the individual is named. We know in the Brianna Ghey case that the defendant's families have been targeted. Of course, this also impacts them mentally and physically, so their welfare must be considered.

“The barristers representing the defendants can object to the anonymity of their clients being lifted, citing the aforementioned reasons (and others), but the court will also consider the opinions of other professionals. Social services, psychologists, psychiatrists, and other interested groups can make representations to the Judge, expressing an opinion based on their expertise.

“We know that in the case of Girl X and Boy Y, Mrs Justice Yip received such reports. There were concerns expressed about their mental health, which she commented on in her decision. Both these defendants have autistic traits and the jury were told they had special educational needs; there have been ongoing concerns about the risk posed to them in custody by others and in the case of Boy Y, he has developed selective mutism disorder.

“Ultimately, upon the young person’s eighteenth birthday, their names would have automatically entered the public domain, allowing journalists to identify them. Had the restriction stayed in place until then, the defence team would ultimately have to decide if they wanted to challenge that or wait for their names to be released.

“There is precedent for those approaching 18 to apply to the courts and ask for their anonymity to be granted permanently, but the need for this must be justified. The outcome would mean that no matter their age, the individual's name cannot be published relating to the crime. However, this is often only reserved for the most exceptional cases.

“Ultimately, every case is different with each defendant having particular circumstances to acknowledge. However, if the press submits a request, the Judge has to consider it. The decision to lift a child’s anonymity is never easy, and it must ultimately be in the public interest to grant that release.”

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