Law Commission recommends new statutory appeal for children denied anonymity
The Law Commission in a new draft bill has proposed a new statutory appeal for a child or young person, where the trial judge refuses to restrict reporting to protect his or her identity. Such an appeal would be made to the Criminal Division of the Court of Appeal.
In their report, published on 26 July 2010, entitled "The High Court’s Jurisdiction in Relation to Criminal Proceedings", the Commission states that "Once a person’s identity has been made public, it cannot be re-hidden, and any harm done by identification cannot be undone". It states further that the protection of Article 8 rights of children and young people is "sufficiently important for there to be right of appeal" and that if their names are made public for crimes committed when children, "their chances of rehabilitation may well be damaged".
Under the current law, a judge is entitled to restrict reporting which might lead to identification of a child or young person in a Crown Court trial under s.39 Children and Young Persons Act 1933 – however, if the judge refuses to restrict reporting then, the Commission says, "it is doubtful whether there is any way that the child or young person can challenge that refusal."
Under the new proposals however, there will be a right to appeal (a) a refusal to make a direction under s.39, and (b) a decision to discharge an existing direction under s.39, or (c) the terms of a direction, at any stage of the trial on indictment.
If a person indicates an intention to ask for leave to appeal, a ‘holding ban’ would apply to the media until the appeal is determined. There would be no further right to appeal beyond the Court of Appeal.