The amendment stands in my name and in that of the noble Lord, Lord Carlile of Berriew. I am afraid that it is a little technical, and I may have to speak for seven or eight minutes. I apologise for that, and I will try to be as quick as possible at this hour.
Amendment 122A proposes a solution to the problems that we face concerning anonymity for children in court proceedings. It creates a default anonymity into adulthood, and allows the court to remove this where
it considers necessary. I welcome the amendments that the Government have tabled in this group, but I feel that they do not go quite far enough, and I hope to persuade your Lordships, and the Minister, that perhaps he might like to look at this area again before Third Reading and table something to meet some of the concerns that I, along with the noble Lord, Lord Carlile, are about to raise.
Since the Children and Young Persons Act was passed in 1933, children in court have been entitled to remain anonymous, whether they are defendants, victims or witnesses, and Sections 39 and 49 of that Act impose different reporting restrictions, depending on whether a case is in the youth court or a different court. These prevent information being published that could lead to the identification of a child. However, whether those restrictions must be respected after a child turns 18, when proceedings have been concluded before then, is a complex question, which seems to have caused great confusion.
So far as I am aware, media organisations have generally respected reporting restrictions even after a child has reached 18, where the proceedings had concluded before then. So children who had historically been involved in court proceedings have not been named in practice, even after they have reached adulthood, whether they were victims, witnesses or defendants.
However, in a recent judgment, Lord Justice Leveson interpreted a Section 39 order to expire once a child reaches 18, as there is nothing specifically stating that anonymity should extend into adulthood. The same analysis would apply to Section 49. The case, which is being appealed, has serious consequences. First, the implication of the judgment is that criminal courts have no power to provide child victims, witnesses or defendants with anonymity into adulthood. As Lord Leveson himself pointed out, this leaves child victims and witnesses with less protection than vulnerable adult victims and witnesses, who can be granted anonymity. Secondly, because the judgment has drawn attention to the law, it is likely that we will see children who were historically involved in court proceedings being identified by the media after they reach 18.
The question that Parliament now has to answer is what to do about this state of affairs. In Committee we debated one solution to the problem, and amendments were tabled that would have set it in statute that Section 39 orders and protection under section 49 would last for a child’s whole life, subject to applications to the contrary. The Government said that there were technical flaws with the amendments, and promised to return to the issue at Report. Last week the Minister, the noble Lord, Lord Faulks, duly tabled Amendment 139, which sets out an alternative. It would create an entirely new order, which could provide child victims and witnesses with anonymity into adulthood—but only if they can show that failure to do so would diminish the child’s evidence or co-operation in the case. Defendants cannot be the subject of the new order at all.
There are two serious problems with the Government’s amendment. First, it introduces a high test, which victims and witnesses must pass if they are to access this anonymity: that is, the test of diminished evidence and co-operation. Sections 39 and 49 of the Children
and Young Persons Act do not require a child to meet any kind of test to be granted anonymity. As I have said, prior to the Leveson judgment, Sections 39 and 49 seem generally to have been respected by media organisations after a child turned 18. Why should it now be necessary for victims and witnesses to meet this test, before being granted anonymity? I feel it is unhelpful. Coming forward as a victim or a witness takes real courage, particularly as a child. Making anonymity harder to access is unlikely to encourage anyone to come forward.
My second concern with the Government’s proposal is the distinction that it makes between victims, witnesses and child defendants, and the fact that it excludes children who are defendants from the new anonymity orders. Their amendment would leave criminal courts with no means to provide a child defendant with protection after they turn 18. The only way for a child defendant to remain anonymous after the age of 18 would be for a civil injunction to be sought. This is unsatisfactory.
I see that the rest of my briefing paper has now disappeared from my iPad, so I shall refresh it and hope that the briefing will return. I may have to ask the noble Lord, Lord Carlile, to take my place for a moment. I have it back now; there is a little lacuna in it, but I do have some more of it here. I apologise for the break, my Lords.
The Government have made clear that they consider reducing reoffending a priority, particularly among children. This is a laudable aim, which I am sure that we all fully support. I believe that achieving that aim will be hindered by refusing anonymity to child defendants as soon as they turn 18. My Amendment 122A puts forward an alternative solution to the problem— one that seeks to overcome the difficulties with the Government’s proposals. Like the government amendment, my amendment introduces a new order that would provide all children in court proceedings with anonymity into adulthood, unless an application were made to vary it. It therefore reverses the burden.
My amendment would be available to child victims, witnesses and defendants, and does not contain the high-threshold test included in the government amendment. Like the government amendment, my amendment would still require the court, when making an order, to consider,
“the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”.
It cannot therefore be said to constitute an undue interference with open justice or press freedom.
We should not underestimate the impact of this matter on child victims, witnesses and defendants, or on the operation of the youth justice system itself. I very much hope that, for the reasons that I have outlined, the Government will agree that my proposed solution is a more productive way forward, and accept my amendment.
I now turn briefly to government amendments 140 and 141, which also relate to anonymity for children in court. I welcome the principle of ensuring that reporting restrictions cover social media, which I understand is the intention of those two amendments. I note that Amendment 140 would prevent Section 39 of the
Children and Young Persons Act applying to proceedings in criminal courts. Can the Government explain why this provision is necessary? I imagine that they intend to bring Section 45 of the Youth Justice and Criminal Evidence Act 1999 into force to replace Section 39. Can the Minister confirm whether that is the case, and if so, give us an indication of when they plan to bring Section 45 into force? If I am speaking too quickly, I am very happy to repeat anything that I have just said.
The government amendments do not mention Section 49 of the Children and Young Persons Act 1933, so far as I can see. Section 49 provides default anonymity for proceedings in the youth court. I am anxious that this is preserved. Will the Government reassure us that they have no plans to alter the default anonymity in the youth court and clarify whether their amendments extend Section 49 so that it explicitly covers social media?
To go back briefly over what I have said, I am concerned that when a person who has committed a crime in his childhood turns 18 and perhaps goes into higher education or university or starts a career, he may find that the facts of his past emerge, which may cause great impediment to achieving success in his career and seriously hinder his rehabilitation. I would appreciate reassurance that the Government have considered that point. I look forward to hearing the Government’s position on these matters. I beg to move.