RXG v Ministry of Justice & Ors

Naming RXG would not act as a deterrent. On the contrary it might, by garnering significant publicity, glorify RXG and encourage others to do the same thing.

On the basis of the expert evidence available to the Court, naming RXG would create a serious risk that his rehabilitation would be threatened.

The interference with the open justice principle by refusing to lift the anonymity order was limited:

“… all the details of what happened, why and how it happened have been carefully recounted and analysed in public. There is nothing that I can identify which the public do not know to enable them to have an informed debate. So it comes down to the fact that without the name and a photograph public interest will be less. How much is impossible to say.”

The right of the public to know if and when someone is released from custody that s/he had committed an offence as serious as this was appropriately met in RXG’s case as he “will not be released until after he is 18 and he can [then] be named”.

Letters from RXG’s local Youth Justice Service dated 29 May 2018, 10 August 2018, 19 September 2018 and 4 December 2018, and a witness statement from the Head of Home at RXG’s children’s home dated 4 December 2018. The later letters and the witness statement dealt with the practicalities of maintaining RXG’s anonymity following a transfer to an adult prison. In the letter of 29 May 2018, the author addressed the risks to RXG (and his family) arising from a loss of anonymity:

“… the professionals and management involved in this case have convened and recognise that if [RXG]’s name were to be released into the public domain, there is potential for various repercussions which should be taken into account when considering this application.

An immediate concern that arises is the potential for [RXG] being placed at risk. Highlighting his identity may lead to him being targeted within the custodial estate from those who might perceive there to be a need for retaliation for his offence. Within most adult prison populations there is likely to be a representation of those who are not only minded to seek retribution, but also willing and able to cause harm to [RXG].

In addition to a risk to [RXG] directly, his family, in particular his parents, brother and younger sisters, are also likely to be identifiable as a consequence of his identification. This also potentially places them in harm’s way by their association. This would cause further trauma to the family who have already had to resettle from their family home following [RXG]’s initial involvement in the Criminal Justice System. One specific area of concern regarding his siblings is around the education provision of his younger sisters. The school is already anxious regarding the situation and there is a strong likelihood that the naming of their older brother would lead to the girls being made to move school again to avoid the negative attention for the family and the school…

It appears that [RXG] is making steady progress though his sentence… Progress is certainly evident in [RXG]’s presenting attitudes and alongside this it is acknowledged that his behaviour within the secure estate has been extremely positive since very early in his sentence. A concern, therefore, is that identifying [RXG] has the potential to undo the progress made if he were to perceive that he had been let down by ‘the system’. This could mean that [RXG] takes backwards steps from his current position or even reignites any hostile feelings he once held and expressed towards certain sections of society…

… [H]is naming within the public domain could hinder [RXG]’s

rehabilitation in the immediate future but even if he were to overcome that obstacle, considering the long term consequences, his ability to ever effectively resettle would be made extremely difficult if his name became something that could be easily recognised as associated with extremism on any internet search engine.”

An assessment by Dr Louise Bowers, a Forensic Psychologist, dated 18 June 2018, based on an assessment of RXG on 4 June 2018. She assessed the likely impact on RXG of removing his anonymity as follows:

“Immediate effects

First, if RXG’s identity is exposed by the media following his 18th birthday, there will inevitably be intrusive media reporting of the case. In my experience, cases that involve young children who commit unusual offences generate strong feelings in the public. Hostile reporting or simply being identified as ‘a terrorist’ will inevitably cause RXG distress and will evoke feelings of shame and humiliation. It is probable that this will have a profound impact on his psychological well-being and could lead to mental health problems. Second, if RXG is identified as the young person who planned a terrorist attack on the Anzac Parade, it is likely that he will be shunned and rejected by his peers at [Secure Setting] who will feel betrayed and misled by him. If this occurred, RXG would quickly become isolated and lonely which would inevitably have an impact on his confidence and self-esteem. Third, if RXG’s identity is exposed, I would be concerned that he might feel let down by the professionals he works with and he may want to distance himself from them. This would then remove him from a vital source of psychological support at a critical time and could impact on his on-going therapy and intervention. Fourth, being labelled as [a] terrorist is likely to make it very difficult or even impossible for RXG to continue the process of developing a new pro-social identity…

His reintegration into, and continuing rehabilitation within, the community…

I continue to work with a number of young people who have committed serious offences as children and have been released from custody as young adults. Most of them have not had their identities protected, but some have. From this experience, I conclude that if RXG’s identity is exposed and he has to attempt to reintegrate into the community identified as ‘a terrorist’, this will severely limit or totally block his opportunities to find suitable education or employment. It is likely that he will be rejected and shunned by society, and given his ASD and associated social difficulties, forming relationships in these circumstances will be very difficult and could become impossible for him. Rejection, a lack of meaningful activity and social isolation were all features of RXG’s life at the time he was offending, and a return to these circumstances is likely to significantly affect his mental state and undermine his rehabilitation.

His ability to engage with support and probation services

RXG has ASD and as is often the case with individuals with this condition, he likes rules, structure and routine. In my view, RXG is highly likely to comply with his licence conditions and what is asked of him by the Probation Service whether his identity is protected or not. If RXG’s anonymity is removed, in my experience, providing these services would be much more challenging for the Probation Service as they would need to protect him from harassment, abuse and direct harm in the community whilst he accessed them.

How his family may be affected, and in turn the effect this will have on him

I have no knowledge of RXG’s family and I am unable to say how they may be affected if RXG’s identity is exposed. However [the Youth Justice Service] provided evidence of multiple potential impacts. RXG is very concerned about the impact exposing his identity could have on his family. He does not fear his family would withdraw their support if he and they were identified, but if this occurs, this would increase RXG’s feelings of guilt at a time when he will be psychologically fragile. RXG was extremely troubled by this aspect of the forthcoming proceedings, and he appeared more concerned about the impact of exposing his identity on his family than the impact for himself.” And later in the report:

“RXG appears to have left his ‘terrorist identity’ behind and he is well on the way to developing a new stable and pro-social identity. He made several references to wanting the public to know who and what he is now, not who he was then. RXG likes and is proud of the person he has become and, in my opinion, this has contributed to his increased confidence and self-esteem. Research shows that ‘shedding’ the old offending identity and developing a new pro-social non-criminal identity is an important part of rehabilitation and desistance from offending… Being confronted with and constantly reminded of his past identity is likely to make it very difficult if not impossible for RXG to continue the process [of] developing a new prosocial identity. If he is labelled ‘a terrorist’ he may simply give up and see little point in continuing the journey towards improving his functioning and making amends for what he has done. In my opinion, allowing the stigma and shame of what RXG did as a child, come to define him as a young adult, would probably halt his psychological development and continuing rehabilitation.”

Dealing with the risk of harm to RXG in the prison estate:

“When RXG turns 18, he could be transferred swiftly to either a young offenders institution or given the nature of his offence, an adult prison. I currently work in both types of establishment. Prison officers are trained to support and protect vulnerable young adults in their care but vigilante attacks still do happen. In my experience, there is a certain respect prisoners can gain from attacking notorious offenders and some prisoners view these sorts of attacks as a badge of honour. If RXG enters the prison system identified as the youngest ever convicted terrorist, he could become a target for those who would want to and be capable of harming him.. RXG

Lochlinn Parker, RXG’s solicitor, has provided five witness statements dated 13 June 2018, 13 September 2018, 6 November 2018, 22 November 2018 and 5 December 2018 respectively. In his second witness statement, Mr Parker has exhibited media reports and social media commentary that attended RXG’s original criminal proceedings and the present application to continue the reporting restrictions. He summarised the coverage as follows:

“The public reaction, gauged through social media commentary, has been overwhelmingly negative. Stories or social media posts have generated hundreds of replies. There is concern that the rights of potential victims and the wider public will be subordinated to those of RXG. There is anger that RXG is able to access the Courts at all, and to be in receipt of Legal Aid. There has also been, as there was previously, Islamophobic and racist commentary.”

An email from a Probation Counter Terrorism Lead in the Security, Order and Counter Terrorism Directorate of the National Probation Service, dated 19 July 2018, in which he confirmed that the Probation Service was experienced in working with other agencies in the management of high-profile cases and those where offenders may be under threat from others.

A letter from Detective Chief Inspector Andrew Meeks of Counter Terrorism Policing North West, dated 30 July 2018, who was the Senior Investigating Officer in the case which resulted in RXG’s conviction. He confirmed that the police could provide no material to support RXG’s application for continued anonymity. He added:

“If, in the event [RXG] were identified at a future date, we came into possession of information to suggest that he was at risk of harm, we would of course take action in accordance with our statutory responsibilities.”

An “Extremism Risk Assessment” on RXG, conducted by a Forensic Psychologist in July 2018, which concluded that RXG was “emotionally and socially immature in comparison to others of his own age”. As to the risk of re-radicalisation, the author noted:

“RXG… currently has media anonymity which affords him some protection from being recognised and pursued. Should this be removed, this may increase his risk, particularly if transferred to the adult estate where he may be exposed to other individuals engaged in the Daesh or other extremist ideology. Such individuals may target him especially given the controversial nature of his offence and his vulnerability due to his age… and ASD. Whilst anonymity might not totally serve to prevent this occurring it may assist in managing this risk particularly in the adult estate.

Conversely, given [RXG]’s ASD it is unclear whether he would be able to maintain a cover story in the adult estate...”

A letter from a Clinical Psychologist, dated 28 September 2018, concerning RXG’s preparations for transfer to an adult prison and the particular challenges presented by RXG’s autism. She identified difficulties that RXG would have in adjusting to a new regime in an adult prison because of his autism.

A report by a Chartered Forensic & Consultant Clinical Neuropsychologist, Dr David Murphy, dated 9 October 2018. The report concentrated mainly on the risks to RXG from being transferred to an adult prison, but Dr Murphy also considered risks arising from his identity becoming known:

“… transferring RXG to an adult prison (especially a high secure one) would on balance not make any significant positive difference in reducing his risk of re-offending or build on his effective treatment to date. Whilst RXG was convicted of a serious offence that could have resulted in significant loss of life, the potential risks associated with a transfer into the adult prison estate (including RXG being victimised by other more able and older prisoners, becoming more socially isolated, developing additional mental health difficulties as a result of stress and possible undoing his therapeutic progress to date) would appear to outweigh any gains. Indeed, it is possible that a transfer to a category A prison may actually increase RXG’s vulnerability to being targeted by others and possibly ‘re-radicalised’. This risk would appear to be linked to two key areas including RXG’s general interpersonal vulnerability and social naivety associated with his ASD, and the possible loss of his anonymity…

My understanding from the available case notes is that maintaining RXG’s anonymity has been a very important factor in maintaining his progress and protecting him from being targeted by others. To date, RXG’s anonymity has been successfully maintained. I suspect that attempting to maintain RXG’s anonymity will require significant effort within a prison environment. Any breach in anonymity will in turn be very difficult to manage and it is likely to have a detrimental effect on RXG. As a result of difficulties associated with his ASD and social immaturity, RXG’s ability to cope with any breach in anonymity is likely to be poor resulting in an increase in his intrapersonal stress which in turn would lead to increased self-isolation, as well as a risk of mood and mental health disturbance. Physical assault resulting from a breach in his anonymity from others would also be a possibility.”

A report by a Consultant Forensic Psychiatrist, Dr Callum Ross, dated 17 October 2018, on RXG’s presenting needs, risks and appropriate treatment management based on his examination of RXG and a telephone conversation with RXG’s mother. Dr Ross did not deal specifically with the issue of RXG’s anonymity, but his report did identify that RXG’s transfer to an adult prison would present difficulties for him and a risk of deterioration in his mental health:

“… the assessment of depressed mood in an individual with autism is challenging. I am concerned that [RXG] disengaged… and I am concerned by his own expressions of anxiety about moving into a Category A prison at the age of 18 accompanied as he is by a personality that struggles to mix and understand others”.

A witness statement by the Legal Director of the Howard League for Penal Reform, Dr Laura Janes, dated 20 November 2018, which dealt principally with a challenge to the decision to move RXG to an adult prison.

A letter from the Executive Director of the Youth Custody Service, dated 5 December 2018, confirming that HMPPS had experience of dealing with maintaining anonymity in the custodial environment and would be able to comply with any order that the Court made.

In the Youth Court, section 49 imposed an automatic prohibition on the reporting of the identity of children and young persons “concerned in” the proceedings (which includes a defendant), but with a power to lift that prohibition in certain circumstances.

In the Crown Court, there were no default reporting restrictions but section 39 conferred a power upon the court to prohibit reporting of the identity of children and young persons “concerned in” the proceedings.

45 Power to restrict reporting of criminal proceedings involving persons under 18.

This section applies (subject to subsection (2)) in relation to—

This section does not apply in relation to any proceedings to which section 49 of the Children and Young Persons Act 1933 applies.

The court may direct that no matter relating to any person concerned in the proceedings shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings.

The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied that it is necessary in the interests of justice to do so.

The court or an appellate court may also by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied—

When deciding whether to make—

in deciding whether to impose or thereafter to lift reporting restrictions, the court will consider whether there are good reasons for naming the defendant;

in reaching that decision, the court will give considerable weight to the age of the offender and to the potential damage to any young person of public identification as a criminal before the offender has the benefit or burden of adulthood;

by virtue of section 44 of the 1933 Act, the court must “have regard to the welfare of the child or young person”;

the prospect of being named in court with the accompanying disgrace is a powerful deterrent and the naming of a defendant in the context of his punishment serves as a deterrent to others. These deterrents are proper objectives for the court to seek;

there is a strong public interest in open justice and in the public knowing as much as possible about what has happened in court, including the identity of those who have committed crime;

the weight to be attributed to the different factors may shift at different stages of the proceedings and, in particular, after the defendant has been found, or pleads, guilty and is sentenced. It may then be appropriate to place greater weight on the interest of the public in knowing the identity of those who have committed crimes, particularly serious and detestable crimes; and

(where applicable) the fact that an appeal has been made may be a material consideration.

45A Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18

This section applies in relation to—

The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.

A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—

For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—

The court may make a reporting direction in respect of a person only if it is satisfied that—

In determining whether subsection (5) is satisfied, the court must in particular take into account—

In determining that question the court must in addition consider any views expressed—

In determining whether to make a reporting direction in respect of a person, the court must have regard to—

A reporting direction may be revoked by the court or an appellate court.

The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.

The court or an appellate court may only make an excepting direction if— (a) it is satisfied that it is necessary in the interests of justice to do so, or

No excepting direction shall be given under subsection (11)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.

In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.

An excepting direction—

For the purposes of this section—

In this section—

Act, it is plain that Parliament decided that, in contrast to the position that applied to witnesses, of whatever age, child or youth defendants should be excluded from the statutory protection of lifetime reporting restriction orders. Thus, that any restriction on the identification of child or youth defendants, by an order made pursuant to section 45 of the 1999 Act, would come to an end once the subject of such an order reached the age of 18.

The principle of open justice is expressly protected by Article 6, but it is subject to qualifications that broadly reflect the various grounds on which exceptions to the principle of open justice are made in our domestic law, either under the common law or under statute: [42]-[43].

Articles 2 and 3 may be engaged where parties or witnesses are in physical danger. The rights guaranteed by those Articles are, in this context, unqualified. The Convention therefore requires that proceedings must be organised in such a way that the interests protected by those articles are not unjustifiably imperilled: [45].

Article 8 protects the private lives of the parties (to which Article 6.1 also refers), and other persons who may be affected by legal proceedings, such as witnesses. Article 8 is a qualified right: [46].

Article 10 is also relevant to the principle of open justice, but that too is a qualified right. Freedom of expression may conflict with other important values, including the rights to life and to bodily security protected by Articles 2 and 3 of the Convention, the integrity of legal proceedings and the rights of litigants and accused persons, protected by Article 6, and the right to respect for private life, protected by Article 8: [47]-[48].

Where there is a conflict between the right of the media to report legal proceedings and the rights of litigants or others under a right which is itself qualified, such as Article 8, a balance must be struck. The correct approach to this balancing process was identified by Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 [17], and by Lord Rodger JSC in In re Guardian News and Media Ltd [50]-[51].

But where the conflict is between the media's rights under Article 10 and an unqualified right of some other party, such as the rights guaranteed by Articles 2 and 3, there can be no derogation from the latter. Care must nevertheless be taken to ensure that the extent of the interference with the media's rights is no greater than is necessary: [49].

In In re S, the House of Lords declined to grant an injunction to protect the interests of a 5-year-old child whose mother had been indicted for the murder of his brother. Described by Lord Sumption as “a strong case on the facts” (Khuja [24]), there was psychiatric evidence that persistent publicity surrounding the trial would be “significantly harmful” to the child, S. Nevertheless, Lord Steyn held:

“[30] A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law…”

And set out what he saw as the consequences of the proposed injunction:

“[32] There are a number of specific consequences of the grant of an injunction as asked for in this case to be considered. First, while counsel for the child wanted to confine a ruling to the grant of an injunction restraining publication to protect a child, that will not do. The jurisdiction under the ECHR could equally be invoked by an adult non-party faced with possible damaging publicity as a result of a trial of a parent, child or spouse. Adult non-parties to a criminal trial must therefore be added to the prospective pool of applicants who could apply for such injunctions. This would confront newspapers with an ever wider spectrum of potentially costly proceedings and would seriously inhibit the freedom of the press to report criminal trials.

[33]

Secondly, if such an injunction were to be granted in this case, it cannot be assumed that relief will only be sought in future in respect of the name of a defendant and a photograph of the defendant and the victim. It is easy to visualise circumstances in which attempts will be made to enjoin publicity of, for example, the gruesome circumstances of a crime. The process of piling exception upon exception to the principle of open justice would be encouraged and would gain in momentum.

[34]

Thirdly, it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.

[35]

Fourthly, it is true that newspapers can always contest an application for an injunction. Even for national newspapers that is, however, a costly matter which may involve proceedings at different judicial levels. Moreover, time constraints of an impending trial may not always permit such proceedings. Often it will be too late and the injunction will have had its negative effect on contemporary reporting.

[36]

Fifthly, it is easy to fall into the trap of considering the position from the point of view of national newspapers only. Local newspapers play a huge role. In the United Kingdom according to the website of The Newspaper Society there are 1301 regional and local newspapers which serve villages, towns and cities. Apparently, again according to the website of The Newspaper Society, over 85 per cent of all British adults read a regional or local newspaper compared to 70 per cent who read a national newspaper. Very often a sensational or serious criminal trial will be of great interest in the community where it took place. A regional or local newspaper is likely to give prominence to it. That happens every day up and down the country. For local newspapers, who do not have the financial resources of national newspapers, the spectre of being involved in costly legal proceedings is bound to have a chilling effect. If local newspapers are threatened with the prospect of an injunction such as is now under consideration it is likely that they will often be silenced. Prudently, the ‘Romford Recorder’, which has some 116,000 readers a week, chose not to contest these proceedings. The impact of such a new development on the regional and local press in the United Kingdom strongly militates against its adoption. If permitted, it would seriously impoverish public discussion of criminal justice.”

In In re Trinity Mirror plc (A intervening) [2008] QB 770, a defendant charged with possession of child pornography was granted a reporting restriction preventing publication in the media of material identifying him or his children. The Court of Appeal held that the Crown Court had no power to make such an order, but that it would have been wrong for the High Court (which would have had power to make the order) to have made the order.

In re BBC; In re Attorney-General’s Reference (No.3 of 1999) [2010] 1 AC 145 also concerned reporting restrictions made in respect of a defendant in criminal proceedings. The defendant had been acquitted of rape on the direction of the trial judge following a ruling that DNA evidence was inadmissible. The Court of Appeal (Criminal Division) subsequently held that the DNA evidence had been wrongly excluded. At the request of the Attorney General, the Court of Appeal referred the point for consideration by the House

In In re Guardian News and Media Ltd the applicants challenged an order made freezing their assets on the ground that they were suspected of facilitating terrorism. Anonymity orders had been made in their favour prohibiting any report of the proceedings that enabled them to be identified on the ground that disclosure of the fact that they were suspected of facilitating terrorism might lead some people to conclude that they were guilty. It was contended that this would violate their Article 8 rights. The Supreme Court set aside the anonymity orders. Lord Rodger gave the lead judgment. Applying Campbell -v- MGN Ltd [2004] 2 AC 457 and Von Hannover v Germany (2004) 40 EHRR 1, the test was whether the publication of a report sufficiently contributes to a question of legitimate public interest to justify any curtailment of the person’s right to private and family life. Freezing orders imposed in cases of suspected facilitation of terrorism were matters of legitimate public interest. Any damage to the applicants’ Article 8 rights was incidental. Lord Rodger noted [73]:

“Although it has effects on the individual’s private life, the purpose of a freezing order is public: it is to prevent the individual concerned from transferring funds to people who have nothing to do with his family life. So this is not a situation where the press are wanting to publish a story about some aspect of an individual’s private life, whether trivial or significant. Rather, they are being prevented from publishing a complete account of an important public matter involving this particular individual, for fear of the incidental effect that it would have on M’s private and family life.”

... 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 offices 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, is 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.

It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence. Among the consequences, the parent will disappear from home when he or she is sentenced to imprisonment, and indeed, depending on the crime but as happened in this case, there is always a possibility of the breakdown of the relationship between their parents. However we accept the validity of the simple but telling proposition put by the court reporter to Judge McKinnon on 2 April 2007, that there is nothing in this case to distinguish the plight of the defendant's children from that of a massive group of children of persons convicted of offences relating to child pornography. If the court were to uphold this ruling so as to protect the rights of the defendant's children under article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.”

Mary Bell, who had killed two small children in 1968: X, formerly known as Mary Bell -v- O’Brien [2003] EMLR 37;

Maxine Carr, who had provided a false alibi for the Soham murderer Ian Huntley: Maxine Carr -v- News Group Newspapers [2005] EWHC 971 (QB); and

the Edlington brothers, who had inflicted grievous bodily harm and committed various sexual offences against three young children: A -v- Persons Unknown [2017] EMLR 11 (“Edlington”).

Restrictions upon freedom of expression must be (a) in accordance with the law; (b) justifiable as necessary to satisfy a strong and pressing social need, convincingly demonstrated, to protect the rights of others; and (c) proportionate to the legitimate aim pursued: Venables [44].

The strong and pressing social needs which may justify a restriction upon freedom of expression, in principle, include:

The threshold at which Article 2 and/or 3 is engaged has been described variously as: “the real possibility of serious physical harm and possible death”: Venables [94]; “a continuing danger of serious physical and psychological harm to the applicant”: Maxine Carr [4]; an “extremely serious risk of physical harm”: Edlington [36].

In Venables ([87]-[89]), Dame Elizabeth Butler-Sloss P. considered that the authorities of Davies -v- Taylor [1974] AC 207 and In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] QC 563 provided helpful guidance as to the assessment of future risks to physical safety. She held that the test is not a balance of probabilities but rather that the evidence must “demonstrate convincingly the seriousness of the risk” and raise a real possibility of significant harm: a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm.

Where an applicant demonstrates, by cogent evidence, that there is a real and immediate risk of serious physical harm or death, then there is no question of that risk being balanced against the Article 10 interests: Maxine Carr [2].

In cases where Article 2 and 3 are not engaged and the conflict is between the Article 8 and Article 10 rights, neither right 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: Edlington [28].

The rights guaranteed by Articles 2 and 3 are unqualified. Where the evidence demonstrates that there is a real and immediate risk of serious harm or death this cannot be balanced against any Article 10 right, no matter how weighty. In that context, it should be noted that we would respectfully depart from the proposition articulated by the Chancellor, Sir Geoffrey Vos in Edlington [35] that Article 2 and 3 rights could be balanced against Article 10 (a proposition later adopted by Sir Andrew MacFarlane, P. in Venables -v- News Group Newspapers Ltd [2019] EMLR 17 [43]): see further [26](vi) above.

However, where evidence of a threat to a person’s physical safety does not reach the standard that engages Articles 2 and/or 3, then the evidence as to risk of harm will usually fall to be considered in the assessment of the person’s Article 8 rights and balanced against the engaged Article 10 rights. Whilst the level of threat may not be sufficient to engage Articles 2 or 3, living in fear of such an attack may very well engage the Article 8 rights of the person concerned.

Article 8 rights may, depending on the facts of a particular case, justify a contra mundum injunction. In Venables, Dame Elizabeth Butler-Sloss P., expressed uncertainty to whether the engaged Article 8 rights, on their own, would have justified the order: [86]. In Mary Bell, the evidence did not reach the level at which Article 2 was engaged ([16]), but the Article 8 rights (balanced against Article 10) did justify a contra mundum injunction ([61]). In Mary Bell, factors under Article 8 that favoured the granting of a contra mundum injunction included:

the youth of an offender at the time of the offending: [45];

the length of time which has elapsed since the offences were

the likely impact upon the mental or physical health of the person if identified: [45], [60(4)], [61]; and

the fact that there was significant information (beyond the new identity of Mary Bell) already in the public domain about the applicant and his or her crimes which enabled the media to comment freely on the case: [60(1)-(2)].

The making of a contra mundum injunction was regarded as exceptional in Venables [76], [97]; Mary Bell [33], [64]; and Edlington [34]. In Mary Bell, Dame Elizabeth Butler-Sloss P. held that the notoriety which may be a consequence of the commission of serious offences would not, of itself, entitle the offender, upon release, to an anonymity order based upon the likelihood of press intrusion: to do so would unjustifiably open the floodgates: [59]. The cases in which contra mundum orders have been granted have been exceptional. In three of them, the Court found that Article 2 was engaged and, in Mary Bell, the combination of the Article 8 rights engaged outweighed those engaged by Article 10.

Risk of attack and serious harm

Identifying RXG will put him at risk of serious harm from third parties, will have a profound adverse impact on his psychological well-being, and will increase the risk he poses to himself. The risk that RXG will be targeted by extremists

RXG’s offending behaviour took place over the internet, where he did not use his real name, and the evidence suggests that his identity is not known outside his family and immediate community. If he now loses his anonymity, he will be of interest to extremists who may target him to seek to indoctrinate him. ISIS said it wanted him to be its ‘poster boy’ and RXG is of particular interest for propaganda purposes because of the notorious nature of his offence and the fact he was the youngest convicted terrorist in the UK.

RXG’s rehabilitation would be at risk

There is clear public interest in ensuring that RXG is rehabilitated, and in preventing a recurrence of his offending. The key object of any sentence of detention imposed in respect of offences committed by children is rehabilitation, the development of a sense of responsibility, and the growth of a healthy adult personality and identity: R (Smith) -v- SSHD [2006] 1 AC 159 [23]-[25] per Baroness Hale. This object is not abandoned when the child becomes 18: [12] per Lord Bingham. RXG’s rehabilitation will be jeopardised if he is identified.

Risks to RXG’s family

RXG’s family would be put at risk of violent attack and there would be a substantial adverse impact on the best interests of his siblings, who are children of primary school age. Mr Fitzgerald QC suggests that they would be forced to move school, causing them trauma and emotional distress.

There would be intense media focus on RXG if the current anonymity order were to be lifted. The evidence suggests that RXG would become instantly and globally infamous as the youngest person to be convicted of a terrorist conviction in this jurisdiction. There was widespread coverage in major domestic and some international media outlets of his arrest, plea and sentencing. That attention had led RXG’s family permanently to relocate. If his name is publicised in media reports, then it will be embedded in the public domain on the internet.

Some members of the public have expressed violent and threatening views about RXG in the comment sections of online media sites (see [10(iii)] above). Although most major media organisations do not permit users to leave comments of this nature, users on social media (and other websites) had posted violent and threatening messages. Comments on some websites included more explicit threats to harm or kill RXG. The authors of those posts, he submits, “may have a propensity to violence”. That the threat to RXG represented by the social media postings is real is supported by the evidence of Dr Bowers and the Youth Justice Board ([10(i) and (ii)] above).

The relevant professionals involved in RXG’s care and rehabilitation consider that a refusal by this court to grant a lifelong anonymity order will put RXG at increased risk of serious harm while in prison. The 29 May 2018 letter from the Youth Justice Service (see [10(i)] above) suggested that there would be “potential for various repercussions” should RXG be identified and there are likely to be persons who are “willing and able to cause harm” in most adult prisons. Evidence from a forensic psychologist, who has worked in prisons and for the prison service for a number of years, was that harming notorious offenders is considered by some prisoners to be a ‘badge of honour’ and RXG could become a target for that reason (see [10(ii)] above).

RXG would also be at an elevated risk of harm upon being released from prison if he were identified with his terrorist convictions. In support of this, Mr Fitzgerald QC relied on Tell Mama’s most recent Annual Report which showed a large increase in violent attacks on Muslims across the country as well as on the decision in Secretary of State for the Home Department -v- AP (No.2) [2010] 1 WLR 1652 where the Supreme Court granted an order protecting the identity of a Muslim man, primarily because there had been racist attacks on the Muslim community in the town in which he lived.

Rehabilitation would be jeopardised

Naming RXG would obstruct and harm his rehabilitation, because the evidence demonstrates that the key risk factors leading to his terrorist offences were social isolation, rejection, and a lack of constructive activities. Because of the exceptional public interest in this case, revealing his identity will make him irreversibly infamous. It will ostracise him from ordinary society and make it extremely difficult for him to find employment, make friends with people who are not extremists, and take part in ordinary activities.

A contra mundum injunction is necessary to protect the public

Mr Fitzgerald QC submits that damage to RXG’s rehabilitation may expose the public to the risk of RXG committing further offences. In support of this submission, Mr Fitzgerald QC relied on Dr Bowers’ evidence (see [10(ii)] above). She is described as a “leading expert in the assessment of the impact of disclosure of the identity of children who have committed offences” and her evidence is to the effect that RXG has made good progress in his rehabilitation, but she is extremely concerned about the potential consequences of him becoming publicly linked with the offences, particularly in terms of being able to find suitable education and employment. She further notes his autism and associated social difficulties will mean forming relationships in these circumstances will be very difficult and may even become impossible. Social isolation, rejection and lack of meaningful activity, she concludes “is likely to significantly affect his mental state and undermine his rehabilitation”. She suggested that the stigma and shame of the offence “would probably halt his psychological development and continuing rehabilitation”.

Those involved in RXG’s care said, in May 2018, that identifying him has “the potential to undo the progress made” and make his ability to effectively resettle “extremely difficult” ([10(i)] above). The Extremism Risk Assessment ([10(vi)] above) noted that RXG’s anonymity acted “as a protective factor” against attempts by ISIS to contact and re-radicalise him. Media reports identifying RXG may also assist ISIS to recruit and indoctrinate impressionable teenagers to follow his example. A Social Services report, prepared before RXG’s original sentence, agreed this may serve to “increase his infamy and notoriety within the terrorist network”. The Extremism Risk Assessment suggested that RXG was of potential value “in propagating the cause”. He is of particular interest for such propaganda purposes because of the notorious nature of his offence and the fact he was the youngest convicted terrorist in the UK. In this respect, Mr Fitzgerald QC relies on the evidence that, prior to his offences, ISIS told RXG that they wanted him to be the ‘poster boy’ for their cause.

In consequence, if his anonymity were to be removed, RXG would be at risk of being exploited by extremists given his particular vulnerabilities associated with his autism. One such vulnerability is his obsessive tendency which, at present, is focused on constructive activities, including football, but might shift back to extremism.

Mr Fitzgerald QC submits that reports prepared for the purposes of the original anonymity decision by Saunders J were to the same effect. The Judge was satisfied that “[i]f I allow [the claimant] to be named there will be a serious risk on the expert evidence that his rehabilitation will be threatened.” A report from a consultant clinical psychologist identified RXG’s personal contact with violent extremists and his susceptibility to influence, authority and indoctrination as ‘high risk factors’ for future violent extremism. A social work report from 2016 stated that RXG would be stigmatised as a terrorist in any community in which he lived and may become vulnerable to further radicalisation due to social isolation.

Loss of anonymity would put RXG’s family at risk and would be contrary to the best interests of his sisters

Finally, Mr Fitzgerald QC submits harm to the applicant’s family weighs in favour of granting an injunction: Edlington [41]. Further, what is in the best interest of his sisters who are at primary school, is a primary consideration for the court when considering the application: ZH (Tanzania) -v- Secretary of State for the Home Department [2011] 2 AC 166 [23]-[26]). He argues that removing RXG’s anonymity is likely to force the family to move again and the evidence suggests that this would put them “in harm’s way”.

on his psychological well-being”. We consider that the evidence of Dr Louise Bowers, in particular, clearly articulates the nature of the harm he would face from losing his anonymity (see [10(ii)] above). In terms of the factors identified in Mary Bell (see

[35(viii)] above), RXG’s case presents a combination of issues that make his case truly exceptional.

He was a child at the time of his offences. Saunders J, as the sentencing Judge, was satisfied that RXG had been groomed and radicalised by others who succeeded in turning him into a “deeply committed radical extremist”. That conclusion was made before RXG had been diagnosed with ASD. But that diagnosis, as the evidence explains, goes a long way to explain why RXG was particularly vulnerable to exploitation by others.

The likely impact upon his mental health if he is now identified is clearly established in the evidence. In the immediate-term, he risks being shunned and rejected by his peers as well as disengaging from the professionals with whom he has developed a good relationship and whose efforts have been so important in his rehabilitation. In the longer term, he would face ostracism and isolation in the community, the effects of which would be exacerbated by his ASD. As Dr Bowers noted, “rejection, a lack of meaningful activity and social isolation were all features of RXG’s life at the time he was offending, and a return to these circumstances is likely to significantly affect his mental state and undermine his rehabilitation”. And, “if [RXG] is labelled ‘a terrorist’ he may simply give up and see little point in continuing the journey towards improving his functioning and making amends for what he has done… [A]llowing the stigma and shame of what RXG did as a child to come to define him as a young adult, would probably halt his psychological development and continuing rehabilitation”.

The 4 years since RXG’s offending might appear to be a short time. But in terms of the development of a child, and particularly the intensive rehabilitation that RXG has received, this represents a significant period. The evidence shows that RXG “appears to have left his ‘terrorist identity’ behind and he is well on the way to developing a new stable and pro-social identity”.

have regard to (a) the principal aim of the youth justice system, which is to prevent offending by children and young people: section 37(1) Crime and Disorder Act 1998; and (b) the welfare of the child or young person: section 44(1) Children and Young Persons Act 1933; and

follow the Sentencing Council guidelines unless satisfied that it would be contrary to the interests of justice to do so: section 125(1) Coroners and Justice Act 2009.

The seriousness of the offence should be the starting point, but the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused.

Where possible, the sentence should focus on rehabilitation and the court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour.

It is important to avoid ‘criminalising’ children and young people unnecessarily; the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish. Restorative justice disposals may be of particular value for children and young people as they can encourage them to take responsibility for their actions and understand the impact their offence may have had on others.

The court should bear in mind any factors that may diminish the culpability of a child or young person. Children and young people are not fully developed, and they have not attained full maturity. As such, this can impact on their decision-making and risk-taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour. When considering a child or young person’s age their emotional and developmental age is of at least equal importance to their chronological age (if not greater).

For these reasons, children and young people are likely to benefit from being given an opportunity to address their behaviour and may be receptive to changing their conduct. They should, if possible, be given the opportunity to

Offending by a child or young person is often a phase which passes fairly rapidly and so the sentence should not result in the alienation of the child or young person from society if that can be avoided.

The impact of punishment is likely to be felt more heavily by a child or young person in comparison to an adult as any sentence will seem longer due to their young age.