A & B v Persons Unknown

This is a very rare case in which adults who were convicted of very serious crimes, whilst they were children, seek a permanent order restraining the press and all other persons from publishing their names or identities. The order is sought on the grounds that, if it is not made, there would be a very serious risk to their rights under articles 2, 3 and 8 of the European Convention on Human Rights (the “ECHR”), because the claimants would be at risk of attack by vigilantes and other persons seeking revenge against them.

The claimants are two brothers who are known in these proceedings as “A” (born in June 1997) and “B” (born in December 1998) respectively. They were each convicted on 3^rd September 2009 on guilty pleas, when they were aged 12 and 10 respectively, of very serious offences including causing grievous bodily harm with intent to three victims aged 11, 9 and 11 respectively. The case was known as the “Edlington case” and caused public outrage and revulsion. The press at the time used a series of epithets for the claimants, such as the “Devil Boys”, the “Hell Boys” and the “Torture Bruvs”.

The claimants were sentenced to indeterminate detention for the protection of the public with a minimum term of 5 years. They were released in early 2016.

Until midnight on Saturday 10^th December 2016, the identities of the claimants were protected by an order made by Keith J at their trial under section 39 of the Children & Young Persons Act 1933 (the “section 39 order”). The younger claimant, B, however, was to become 18 on Sunday 11^th December 2016, causing the section 39 order to lapse. This application was, therefore, brought on for hearing on Friday 9^th December 2016. The case of R (JC & another) v. The Central Criminal Court [2014] EWCA Civ 1777 makes clear that section 39 cannot be used after the subject has reached adulthood. Accordingly, unless another order were made, the identities of A and B would not have been protected after midnight on Saturday 10^th December 2016.

When Keith J made the section 39 order, he said it was necessary in the light of the publicity that the case had attracted, to prevent harm from other inmates, to avoid the expense of protecting the family from reprisals and to avoid the adverse impact of identification on the claimants’ rehabilitation.

When the claimants were released, the Parole Board was satisfied that, after extensive rehabilitative work, it was no longer necessary for them to be confined to protect the public. Both claimants changed their names at that time by statutory declaration. Since their release, both claimants have received significant support. A has had difficulty adjusting, but has built good relationships with professionals, and B has made very good progress in education and in building the skills needed for independent living.

In the broadest of outline, the claimants contended that if a renewed anonymity order were not made in their favour, they would be at risk of vilification and physical attack from members of the public outraged by their crimes, so that they would be forced to move to a new area, perhaps repeatedly, and that their rehabilitation would be fatally affected.

There was no application for the matter to be heard in private. Accordingly, the entire proceedings were conducted in open court with members of the press present.

The application that the claimants made was for an interim injunction against the world prohibiting publication of their names and addresses and of any information that might lead to them being identified by members of the public in connection with the offences for which they were convicted as children. The application was made under articles 2 (right to life), 3 (prohibition of torture), and 8 (right to respect for private and family life) of the ECHR scheduled to the Human Rights Act 1998 (the “HRA 1998”), on the basis that the order sought was a proportionate interference with the right to freedom of expression under article 10 of the ECHR.

The jurisdiction to grant such an injunction has been established in three previous cases: X v. O’Brien [2003] EWHC 1101 (QB) (the case concerning the child killer, Mary Bell) and Venables and Thompson v. News Group Newspapers Limited [2001] Fam 430 (the case concerning the killers of James Bulger), and Maxine Carr v. News Group Newspapers Limited [2005] EWHC 971 (QB) (the case concerning the girlfriend of Ian Huntley, the Soham murderer).

The claimants’ solicitors have put the main national and local media organisations on notice of this application. The Guardian, Channels 4 and 5, the BBC, ITV and Johnston Press plc (which owns much of the local press around Doncaster, where the offences took place) all confirmed in writing that they did not intend to resist the application. The Press Association indicated in advance of the hearing that it would wish to make representations against the grant of an injunction. It appeared before me by a journalist, Mr Brian Farmer, whom I permitted to address the court.

Mr Farmer first informed the court that the Press Association did not want to be joined as a defendant to the proceedings because of the costs implications of doing so. He submitted that it was wrong that the media should have to subject itself to the risk of an award of adverse costs simply in order to oppose an order of this kind. He said that the Press Association could not afford to bear the costs. None of that affected the Press Association’s wish to oppose the making of the proposed order. There was a debate between Mr Farmer and Ms Philippa Kaufmann QC, leading counsel for the claimants, as to whether or not the Press Association had actually responded to the claimants’ solicitors’ offer to provide it with the papers filed in support of the application on receipt of an undertaking only to use those papers for the purposes of this application. I took the view that nothing turned on that debate, because if the Press Association wished to mount substantive opposition to the order that was sought, I would have only considered an interim order on Friday 9^th December 2016 and would have adjourned the matter for an effective inter partes hearing to take place once the Press Association had been provided with the papers and had had a proper opportunity to consider them with its lawyers.

In the discussion which followed, I suggested that the Press Association might in due course wish to consider whether to apply to be joined as a named party to the proceedings and also for a pre-emptive costs order or a cost capping order under CPR Part 3.19. I suggested that I would be prepared to adjourn the matter for such applications to be dealt with, but that I would, as I have said, have to consider immediately whether an interim anonymity order should be made to protect the position on the expiry of the section 39 order.

In the result, after both Ms Kaufman and Mr Farmer had made their substantive submissions as to whether interim relief should be granted, I asked Mr Farmer to give me some indication of whether he thought it likely that the Press Association would indeed wish to make any of the applications that I had earlier intimated. After communicating with his office, Mr Farmer informed me that the Press Association felt that it had had the opportunity during the hearing on Friday 9^th December 2016 to raise its concerns, and that it would not wish to apply to be joined as a party to the proceedings or formally to appear to resist the order sought in future. Accordingly, I indicated that, in the absence of any media representative seeking to be joined in to the proceedings formally to oppose them, I would consider whether the injunction sought should be granted on a permanent rather than a temporary basis. It was clear that the claimants had had the opportunity to present all the evidence that they wished to rely upon, and that, despite many media organisations having been notified of the application and given the opportunity to appear to oppose, there was no opposition save that already advanced by Mr Farmer for the Press Association. I should mention also that, at that stage, a journalist in court from the Daily Mail asked for the opportunity to contact his office to see whether that newspaper wished to reconsider its position. Ultimately, that Daily Mail journalist informed me that his newspaper did not wish to advance any formal opposition.

Accordingly, I indicated towards the end of the hearing that I would deal with the application as if it were the application for a final injunction. I should also mention that, during the hearing I was informed that representatives of Doncaster Children’s Services Trust were present in court. They were concerned for the interests of the claimants’ younger sibling, BR, who is a child in his teens. In the result, they too indicated that they did not wish to make any submissions in relation to the application.

When the hearing ended on Friday 9^th December 2016, I indicated that I was satisfied that it was appropriate to make the order sought, so that I would do so with immediate effect. In view of the importance and sensitivity of the order that was being made, I said that I would give my reasons in writing in due course. This judgment represents those reasons.

The evidence that has been put before the court in support of the claimants’ application has been voluminous. I do not intend to summarise it all. Suffice it to say that in a comprehensive and persuasive report dated 1^st December 2016, Dr Louise Bowers, an expert forensic psychologist concludes that there would be significant risks to the wellbeing and rehabilitation of the claimants if their identities were linked to their index offences. At paragraph 8.23 of her report, Dr Bowers explained that there was the potential for the claimants to be re-traumatised either by hostile media reporting or abuse from members of the public. They would then have to be removed from critical support, monitoring, supervision and established protective factors. Dr Bowers said that they would face many, probably cumulative, detrimental consequences and “the impact [on] their progress and continued development would be devastating”. There would be the potential for them to develop significant mental health problems. Dr Bowers concluded that the claimants have applied themselves diligently to the process of rehabilitation, and “in [her] view it would not only be a further punishment to expose their identities at this juncture, but this could also undo all the hard work they have put into rehabilitating themselves”.

I have considered also the following detailed witness statements explaining why each of the makers believe that severe risks would be posed for the claimants if their identities were now to be revealed.

Ms Laura Janes, the claimants’ solicitor, who is also Legal Director at the Howard League for Penal Reform, exhibited a letter dated 24^th November 2016 from Lord Carlile of Berriew CBE QC, who conducted a report in 2012 for the Minister of Education into the lessons to be learned from the case. He expressed the view that he would not have willingly participated in an exercise that “would have run the risk of wrecking [the claimants’] adult lives”, on the basis that nobody involved in his report had ever contemplated that the claimants would ever be identified in the future – quite the opposite”.

Professor Dame Sue Bailey DBE, a forensic psychiatrist, who has been extensively involved in this case and has extensive experience in the very few other similar cases over the years, expressed detailed concerns about the possibility of the identities of the claimants becoming known both to the claimants themselves and to the Youth Justice System. Mr Andrew Hood is the operational lead with the Youth Offending Team responsible for supporting the claimants’ sentence planning and rehabilitation. His evidence concerned the success of the claimants’ rehabilitation thus far, the ongoing media interest, and the likely adverse effects of their being identified.

In addition to this detailed evidence, I saw statements to similar effect from “I”, the allocated social worker for A and B between December 2009 and November 2015, “V”, a practitioner with the local Youth Offending Team, “G”, B’s probation officer after November 2016, “L”, the intervention manager at the secure children’s home where B previously lived, “N”, who has been A’s probation officer since his release in early 2016, and “S”, the intervention manager at the secure children’s home where A lived, and who worked with A from 2014 to his release on 2^nd March 2016.

B provided his own statement expressing his own understandable concerns for himself and his family. He fully acknowledged the extreme gravity of his offences, and said compellingly that he now feels inside like a completely different person. He said that: “[i]t has taken a long time to get there and I have done loads of work with professionals in secure to work through what I did and why I did it. I now feel like I have become the opposite to that person who did the crimes. I desperately want to carry on being the person I have become. I want to get a job or maybe even go to uni”. The other evidence before me suggests that B’s ambitions may be genuinely capable of realisation. Whilst the solicitor for A has expressed the view that it would be damaging to ask him to make his own statement, because he has other problems and difficulties, I have no doubt that he too is equally committed to the path of rehabilitation.

Ms Alexandra Wigzell of the Standing Committee for Youth Justice expressed the view that anonymity should be preserved in this case in order not to jeopardise the claimants’ safety, and that providing such anonymity is in accordance with government policy. She exhibited and referred to the findings of the Standing Committee’s report entitled “What’s in a name? The identification of children in trouble with the law” dated May 2014.

On 2^nd December 2016, the Chief Executive of the Parole Board, Mr Martin Jones, wrote to the claimants’ solicitors saying that it was very rare indeed for young people to be convicted of such grave offences, and that both were now subject to stringent licence conditions to assist their management in the community and to protect the public. On the basis of the decisions of both panels of the Parole Board, Mr Jones saw a “clear risk that a loss of anonymity would affect [the claimants’] management in the community. One panel noted clear risks around the “considerable hostility … in the community” and that the anonymity would help management of that risk”. He concluded that, in his judgment, he believed “that in this uniquely difficult and troubling case, safe management in the community could be completely undermined by a loss of anonymity”. On 18^th November 2016, Lord McNally, the Chairman of the Youth Justice Board also wrote supporting the continuation of anonymity for the claimants as being essential to their continued treatment and rehabilitation.

Ms Kaufmann asked me to look at the press reports and social media coverage that had occurred since it became public knowledge that this application was being made. Most mainstream newspapers did not allow online comments on their articles, but the Mail Online did so. The article appeared under the heading “Freed boy ‘monsters’ who tortured children seek life anonymity: Brothers who battered, strangled and sexually abused two friends apply to remain unidentified as adults”. After a lengthy article about the details of the case, I was shown some 100 pages of comments, many calling for retribution against the claimants in the form of the death penalty or vigilante action. I was told that actual threats against individuals are removed from the internet under the paper’s policies. But I can say that some of the comments are, on any basis, most intemperate, and indicative of the undoubted public strength of feeling against the claimants and the likely risk of harm that they would face if their identities were revealed. There is no doubt that the press retains a great interest in the details of the case and the identity of the claimants.

Mr Farmer submitted that the Press Association only wishes to report the claimants’ original identities, not their new identities. He pointed out that the risk only came from the area in which the crimes were committed, where those identities must already be known to some people. In the case of Thompson and Venables, their names were known and they have, said Mr Farmer, maintained their anonymity in their new identities. He acknowledged that there was a risk of “jigsaw identification”, but submitted it could be controlled if their new identities were not revealed.

Section 6 of the HRA 1998 provides that “[i]t is unlawful for a public authority [including a court] to act in a way which is incompatible with a Convention right”. Section 12 of the HRA 1998 provides as follows under the heading “Freedom of expression”:-

I have been shown a number of authorities on section 12 of the HRA and on the balance between articles 8 and 10 of the ECHR, including in particular PJS v. News Group Newspapers [2016] AC 1081 in the Supreme Court per Lord Mance (with whom 3 other justices agreed) at paragraph 20, and In Re S (A child) (Identification: Restrictions on Publication) [2005] 1 AC 593 per Lord Steyn at paragraph 17. It is clear that neither article 8 nor article 10 has precedence over the other. What is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case. The justifications for interfering with or restricting each right must be taken into account, and a proportionality test must be applied.

As I have already said, only three orders of the kind sought before me have ever been made before. It is, therefore, useful to look at the two most important of these in a little more detail. In Venables and Thompson v. News Group Newspapers Limited supra, Dame Elizabeth Butler-Sloss P dealt in detail with the evidence of risk to the applicants reported by the press. At paragraph 81, she concluded that the court had jurisdiction, in exceptional cases to “extend the protection of confidentiality of information, even to impose restrictions on the press, where not to do so would be likely to lead to serious physical injury, or to the death, of the person seeking that confidentiality, and there is no other way to protect the applicants other than by seeking relief from the courts”. There the allegation she found proved was that if the information were published, it would be likely to lead to grave and possibly fatal consequences. Lady Butler-Sloss held at paragraph 89 that she should approach the assessment of future risk to each of the claimants on the basis that the evidence supporting the case had to demonstrate convincingly the seriousness of the risk.

In the later case concerning Mary Bell, X v. O’Brien supra, Lady Butler-Sloss made a similar order identifying the exceptional circumstances at paragraph 36 as including the young age at which the offences were committed, the need to support rehabilitation into society and the redemption of the offender, Mary Bell’s semi-iconic status and the effect of publicity on her rehabilitation, the serious risk of potential harassment vilification and ostracism and the possibility of physical harm, and Mary Bell’s current mental state. Eady J made the order in Maxine Carr supra on the basis that it was necessary to protect life and limb and psychological health.

In R (C) v Secretary of State for Justice [2016] 1 WLR 444, Baroness Hale explained the competing factors in the case of a mental patient who had committed multiple murders, who sought continued anonymity under CPR Part 39.2(4). She undertook the balancing exercise necessary at para 36-40 concluding at para 40 that there was a very real risk that, without anonymity, the “very real progress that [the claimant] has made during his long years of treatment in hospital” would be put in jeopardy. Baroness Hale opened her judgment in that case by stating what is of crucial importance, namely that “the principle of open justice is one of the most precious in our law”, and that the two aspects of that principle are that justice should be done in open court and that the names of the people whose cases are being decided and of others involved in the hearing should be public knowledge. She cited at paragraph 18 the well-known dictum of Lord Rodger of Earlsferry in Re Guardian News and Media [2010] 2 AC 697 at paragraph 63 as follows:-

“What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And that is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria 31 EHRR 246, 256, para 39… More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, “judges are not newspaper editors”. See also Lord Hope of Craighead in In re British Broadcasting Corpn [2010] 1 AC 145, para 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.”

Much has also been said about the need to identify convicted criminals by name. I refer only to the extremely important dictum of Sir Igor Judge P giving the judgment of a 5-judge Court of Appeal in Re Trinity Mirror plc (A and another intervening) [2008] QB 770 in a case where a defendant convicted of offences of child pornography sought anonymity to protect his children under section 4(2) of the Contempt of Court Act 1981. Sir Igor Judge said this at paragraph 32:-

“This appeal succeeds on the jurisdiction argument. We must however add that we respectfully disagree with the judge’s further conclusion that the proper balance between the rights of these children under article 8 and the freedom of the media and the public under article 10 should be resolved in favour of the interests of the children. In our judgment it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill’s memorable epithet, if the defendant’s “birthright”. From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case”

Against the above background, there were two issues before the court:-

Section 12 of the HRA requires me to have particular regard to the importance of the ECHR right to freedom of expression. As Sir Igor Judge’s dictum makes clear, anonymity will only be granted if there is an “absolute necessity for doing so in the individual case”. This resonates with the judgments of Lady Butler-Sloss to which I have referred requiring exceptional circumstances, the need for the likelihood of serious physical injury or death and convincing evidence to demonstrate the seriousness of those risks.

A risk of a breach of the unqualified rights in articles 2 and 3 of the ECHR is a risk as to events in the future rather than a present breach of that unqualified right. Accordingly, I do not think that even such a potential breach can automatically trump the article 10 right to freedom of expression. A broadly similar approach as the Supreme Court adopted in PJS supra is required. There must be an intense focus on the nature and extent of the risks under articles 2 and 3, and on the comparative gravity of those risks and of the rights under article 8 and 10 of the ECHR in the individual case. The justifications for interfering with articles 8 and 10 or for restricting each of those rights must be taken into account, and a proportionality test must be applied. I have sought to undertake such an exercise.

I have not sought in this judgment to set out all the press coverage that has taken place either during the criminal trial or in more recent times. Suffice it to reiterate that the case has created almost unparalleled public anger and resentment directed at the claimants. The public calls for revenge and for harm to be done to the claimants are, in my judgment, to be taken very seriously indeed. The witness evidence, the press coverage, and the posts on the internet all point one way: if the identities of the claimants were to be revealed, they would be at extremely serious risk of physical harm. That is to say nothing of the undoubted fear and actual psychological harm that would undoubtedly follow any lifting of the existing anonymity orders. I have no doubt as to the gravity of these risks.

I have carefully considered whether these risks could be ameliorated as Mr Farmer suggested by allowing the release only of the claimants’ former identities. In my judgment, this would seriously destabilise the situation and allow those seeking revenge to engage, as they did in the Bulger case, in a hunt for the claimants’ new identities, causing potentially significant harm to third parties on the way. I need only mention the suicide of one person wrongly identified as one of the killers in the Bulger case as an example of what terrible consequences can follow from an intermediate solution.

I have, therefore, concluded on the evidence that there are serious and real risks of the claimants’ rights under articles 2 and 3 of the ECHR being infringed if the order sought is denied.

It is also clear from the evidence that I have seen that a withdrawal of anonymity would have a potentially very serious effect on the claimants’ rehabilitation. First, they would almost certainly have to move from their current location where they have formed good relationships, are progressing well, and have positive professional and peer group associations. Secondly, the publicity would undoubtedly have a bad effect on the claimants’ continuing education (particularly in the case of B) and on their mental health and well-being. Thirdly, there is a vast array of highly damaging information already in the public domain which would immediately become indelibly associated with them, and make it very difficult for them to continue to live the normal lives to which all the efforts that have been made with them have been directed – and successfully so. The special feature here is that there is a large amount of personal information about the claimants’ family background and their history of neglect, which was contained in Lord Carlile’s very detailed and public report on the Edlington case.

There is overwhelming evidence from the professionals that have been working with the claimants to the effect that a withdrawal of anonymity would damage ongoing rehabilitative work severely in all the areas I have mentioned.

In addition to the above, a withdrawal of anonymity would risk damaging the claimants’ teenage sibling and the claimants’ family. This is of importance in this case where anyone associated with the claimants seems to be the subject of public anger about their crimes.

These factors need to be balanced against the public interest in the perpetrators of very serious crimes being identified for the reasons given by Sir Igor Judge. It is only in cases of absolute necessity that this principle can be overborne. That said, I have reached the clear conclusion that this is just such a case. The extreme likelihood of physical and mental damage being caused to the claimants creates that necessity. The public revulsion of the claimants’ crimes appears not to have died down in the 8 years since they were committed. It seems unlikely that time will make much difference to the public’s approach. There is, in my judgment, no choice but to grant the claimants anonymity for their own protection, on the grounds of the inevitable violation of their rights under articles 2, 3 and 8 if such anonymity is denied them.

I have subjected the evidence before the court to the appropriate intense scrutiny, and have concluded that it has been shown convincingly that, if anonymity were withdrawn, grave and possibly fatal consequences would result. In the extremely unusual circumstances of this case, the risks of violation of the claimants’ rights under articles 2, 3 and 8 of the ECHR have been shown to outweigh the important article 10 right to freedom of expression.

For the reasons I have given, I decided on 9^th December 2016 to make the order sought by the claimants. Since then, the claimants’ solicitor has requested a slight variation to that order, and I intend to make that variation and to grant an injunction in the following terms in order to provide slightly greater clarity:-

“An injunction is hereby granted prohibiting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite service of information in such manner or in such context as to lead, or which could or might lead, to the identification of the Claimants, or either of them, as being the persons who committed the offences in what became known as ‘The Edlington Case’, heard in the Sheffield Crown Court (case numbers T20090740 and T20090438) including but not limited to:

(a)

the current names of the Claimants;

(b)

the original names of the Claimants;

(c)

the address or any details which could lead to information about the whereabouts of the Claimants;

(d)

any picture, image, voice and/or video recording of and including the Claimants;

(e)

the names of any of the persons, locations or organisations set out in confidential Schedule 1;

No publication of the text or a summary of this order (except for service of the order) shall include any of the matters referred to in this paragraph.”

CPR Part 39.2 provides as follows:-

“(1)

The general rule is that a hearing is to be in public. …

(3)

A hearing, or any part of it, may be in private if –(a) publicity would defeat the object of the hearing; … or (g) the court considers this to be necessary, in the interests of justice.

(4)

The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.”

Section 6 of the HRA provides that “[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right”.

It follows from what I have said about the need for anonymity that the claimants ought, exceptionally, to be allowed to issue the proceedings without giving their names or addresses in the proceedings, and that orders should be made to ensure that their identities are protected with the proceedings. Any other course would entirely frustrate the purpose of the proceedings which I have held to be justified and appropriate, and would violate the rights of the claimants under the ECHR.

For these reasons, I ordered under CPR Part 39.2(4) and section 6 of the HRA that the claimants should be permitted, with retrospective effect, to issue these proceedings naming the first claimant as “A” and the second claimant as “B” and giving their addresses as care of their solicitors.

This judgment constitutes my reasons for having made a permanent order on Friday 9^th December 2016 allowing the claimants anonymity, and for having permitted them to issue these proceedings in the names of “A” and “B”.