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  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.