Full case report

Markham and Anor v R

Reference [2017] EWCA Crim 739
Court Court of Appeal Criminal Division

Judge The President of the QBD (Sir Brian Leveson), Blake J, Lewis J

Date of Judgment 9 Jun 2017


Summary

Reporting restrictions – children – s45 Youth Justice and Criminal Evidence Act 1999 – excepting direction – Article 8 – Article 10


Facts

Stan Lucas Markham and Kim Edwards (“the Ds”) were prosecuted for the murder of Kim Edwards’ mother and sister. On 10 October 2016, in the Crown Court at Nottingham before Haddon-Cave J, Markham (who was born on 1 August 2001) pleaded guilty on re-arraignment to two counts of murder. Edwards (born on 13 June 2001) admitted two counts of manslaughter by reason of diminished responsibility; this plea was not accepted and a trial followed. On 18 October, she was convicted of both charges.

On their first appearance, an order had been made under s.45 of the Youth and Criminal Justice Act 1999 (“the 1999 Act”) prohibiting the Ds’ identification (“the Order”). Before the start of Edwards’ trial, the press applied to lift the Order. Haddon-Cave J conducted the balancing exercise and concluded that it came down in favour of maintaining the Order.

At the conclusion of the trial, Haddon-Cave J revisited the Order. He heard representatives from newspaper organisations and the Press Association (who sought a lifting of the order) and from the defendants and the local authority (who sought to maintain it). The CPS adopted a neutral position.

The argument started with a dispute as to the burden of proof based on the different language of s. 45 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) compared to s. 39 of the Children and Young Persons Act 1933 (“the 1933 Act”).

The press relied on a number of factors. First, the considerations relating to the integrity of the trial process had fallen away. Secondly, there was a strong public interest in fully understanding the events which would be fatally undermined by the restrictions. Third, their identification would have a deterrent effect and its adverse impact did not cross the high threshold applicable where rights under article 2 of the ECHR were concerned and, in relation to article 8, did not outweigh the strong public interest in open justice encapsulated by article 10. Finally, the point was made that the defendants were then over the age of 15 years and that any order would, in any event, expire in three years’ time.

For the defendants, reference was made to Articles 3 and 40 of the UNC and the UN Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”). The significance of the welfare of the child identified in ZH (Tanzania) v Secretary of State for the Home Department (see [50] above) was similarly emphasised.

Haddon-Cave J concluded that the two defendants were guilty of exceptionally grave crime such that there was a high public interest in their identification. If the press were unable to report their identity, the trial would be deprived of meaning and context because it would be impossible properly to understand that the murders took place in a closed family context, leaving a vacuum “which exacerbates the risk of uninformed and inaccurate comment”. He noted that the order would, in any event, expire for each defendant on attaining the age of 18 and that the tariff would stretch for many years beyond that date. He lifted the Order, making an “excepting direction” under s.45(5) of the 1999 Act but stayed the effect of his decision pending a challenge by the Ds by way of judicial review.

The Ds appealed against sentence to the CA and were also granted permission at an oral hearing by Jay J to apply for Judicial Review of Haddon-Cave J’s decision to lift the Order. Associated Newspapers Ltd, Newsgroup Newspapers Ltd, Times Newspapers Ltd and the Press Association intervened in the proceedings for judicial review in support of Haddon-Cave J’s decision. Just for Kids Law (“JfKL”) was subsequently given permission to intervene in the Judicial Review Proceedings.

The appeal against sentence carried with it the need for the CA to make its own assessment of the position relating to reporting and this superseded the full hearing of the Judicial Review, rendering proceedings in the Administrative Court academic.

In relation to the Order, the Ds argued that the Judge: was wrong to hold that they bore the burden of proof in relation to demonstrating that the s.45 Order should continue post-conviction; failed to have sufficient regard to the international instruments; wrongly gave an “excepting direction” under s.45(5) only by reason of the conclusion of the proceedings; and that he reached the wrong decision on the facts of the case.


Issue

Was Haddon-Cave J’s decision to lift reporting restrictions and make an excepting direction under s.45(5) correct?


Held

Dismissing the challenge to Haddon-Cave J’s decision and granting an excepting direction removing the restrictions on identification under s.45(5) of the 1999 Act:

  1. Given that the court had to exercise a judgment based on balancing the different factors involved, the existence of which was not in issue the dispute as to where the burden of proof lay on the application took the argument no further.
  2. The argument by the Ds and JfKL that Haddon-Cave J failed to have sufficient regard to the international instruments ignored the well-established domestic law which itself takes the international dimension relating to the protection of children into account seen in in R v Leicester Crown Court, ex parte S (A Minor) [1993] 1 WLR 111; (1992) 94 Cr App R 153 and McKerry v Teesdale and Wear Valley Justices (2000) 164 JP 355; [2001] EMLR 5. The Judge recognised and, when conducting the balancing exercise, gave full weight to the international obligations which the United Kingdom has adopted. Submissions in this area of the law should focus on the facts of the particular case relevant to the exercise of the court’s judgment, rather than the siren calls of abstract principles that have already informed the approach which the courts adopt.
  3. It was wrong to characterise the approach of the Judge as having given an excepting direction by reason only of the conclusion of the proceedings. He spoke of the picture having changed post-trial not only because the integrity and smooth running of the trial process had then fallen away as a justification or was of much less significance but also that it was now known that both defendants were guilty of murder and there was more up-to-date medical and other evidence in relation to each and to their welfare.
  4. Reviewing the Judge’s decision and exercising the CA’s discretion independently, the Judge reached the correct conclusion on the facts of the case. The facts of the case (and, in addition, the sentencing remarks) could not be properly understood without identifying that the appellants murdered the mother and 13 year-old sister of Edwards. No new material was before the CA to justify the conclusion that lifting anonymity would cause harm to either appellant, and the assessment of the Judge in relation to substantial grounds for fearing a real risk of self-harm that would engage an obligation under articles 2 or 3 of the ECHR is faultless. Nor was there evidence that reporting their identities would adversely affect the future rehabilitation of the Ds, and, thus, be contrary to the welfare of a child, which would give rise to a weighty consideration in the balancing of competing considerations in the assessment that we must make. Anonymity lasts only until 18 years of age and both Ds faced a very considerable term of detention.
  5. In the circumstances of this case, notwithstanding that the appellants were only 15 years of age, the lifting of reporting restrictions was in accordance with law, pursued a legitimate aim and was a reasonable and proportionate measure, properly balancing the welfare of the appellants (and other factors identified within article 8 ECHR) against the article 10 rights of the press and the interests of the public.

Comment

Defendants aged under 18 in the Crown Court typically benefit from a direction prohibiting their identification under s45 of the 1999 Act. This decision underlines that the issue of whether such a direction should continue after conviction is a fact-sensitive one and, where a defendant’s identity is vital to understanding the facts underlying their conviction or guilty plea, then there will be a powerful public interest in identifying them.

The protection of the rights and interests of children, and the extent to which the law of England and Wales reflects the UK’s international obligations in that regard, has become a significant factor in the developing law of privacy. The Court’s approach here, and its strong statement warning against any attempt to rely on abstract principles, makes clear that in the statutory framework which governs children’s identification in the criminal justice context, those obligations have already been adequately factored in.


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