The veil of identity in criminal proceedings of children: are protections offered outdated?
The UK justice system has borne witness to some of the most depraved killers, convicting the likes of Peter Sutcliffe, Ian Brady, Myra Hindley, and in more recent years Wayne Couzens. Offenders of such violent crimes are typically adults, and therefore are presumed criminally responsible for their conduct; yet this begs the question, what happens when children kill? Though such instances are rare, there is a legislative procedure for youth offenders. The legislation that governs the prosecution of children is the Children and Young Persons Act 1933, in which section 50 states: “It shall be conclusively presumed that no child under the age of [ten] years can be guilty of an offence”. Though this threshold may be considered low in contrast to the UN Committee on the Rights of the Child’s guidance, which states: “A minimum age of responsibility below the age of 12 years is considered not to be internationally acceptable,”, England has enacted additional legislative provisions for youth offenders. Such provisions have stimulated much debate, as will be discussed in this article. The first point of contention that this article will address is S49 of the Children and Young Persons Act 1933, which places restrictions on reports of proceedings in which children or young persons are concerned. Secondly, I will discuss the powers of court orders enforcing anonymity injunctions for youth offenders, which have also been subject to public scrutiny; many argue that such provisions are too lenient and untenable in a contemporary world.
The Cases of James Bulger and Brianna Ghey
Though murders committed by children are rare, they are not unprecedented. The killings of James Bulger and Brianna Ghey, despite being 30 years apart, present parallel instances of children being convicted of murder in the UK. On the 12th of February 1993, two ten-year-old boys named John Venables and Robert Thompson abducted two-year-old James Bulger from a shopping centre in Liverpool. Two days later, he was found battered to death on a railway line. Subsequently, on the 24th November 1993, Venables and Thompson were both found guilty of James Bulger’s murder and sentenced to life imprisonment; in the name of “public interest”, the Youth Court lifted reporting restrictions that protected the identity of the two boys. Following 8 years of imprisonment, Venables and Thompson (now adults) were released in June 2001 and a court injunction was imposed preventing reporting on their whereabouts. The court appeared to follow a similar process in the case of Brianna Ghey; on the 11th of February 2023, 16-year-old Brianna was lured to Culcheth Linear Park in Warrington by her killers. Once there, she was attacked with a hunting knife in broad daylight and suffered a total of 28 stab wounds, resulting in her death. Following their conviction in December 2023, Scarlett Jenkinson and Eddie Radcliffe were both sentenced to life imprisonment and had their anonymity lifted. Both offenders were fifteen years old at the time of the offence, and sixteen years old at the time of their trial. This demonstrates two instances where the courts stray from the due procedure in favour of greater interest; however, such decisions have been subject to criticism.
The age of criminal responsibility
Additional provisions made in cases of youth offenders may be attributed to a lack of coherence surrounding the concept of criminal responsibility, which refers to the determination of the extent to which a person is responsible for their actions before a criminal court. England has one of the lowest age thresholds of criminal responsibility in Europe at 10 years old; this strays greatly from the European average of age 14 and the UN’s previous recommendation of 12 years old.
It is accepted that children do not have the same capacity as adults to make wholly autonomous decisions, hence why the age of consent regarding sexual intercourse is 16 and the age permitting the purchase and consumption of alcohol is 18 years of age. Therefore, some argue that presuming such a capacity in cases of criminal offences is unjust; Lord Dholakia articulates: “It cannot be right to deal with such young children in a criminal process based on ideas of culpability, which assumes a capacity for mature, adult-like decision making…the age of criminal responsibility is an anomalous exception”. he age of criminal responsibility appears to be the only element of UK legislation that doesn’t correspond with the notion that children have an impaired capacity; therefore, it may be argued that the age of criminal responsibility should be increased due to an insufficient mens rea and inability for children to sufficiently form a criminal intention.
Nevertheless, without the current standard of criminal responsibility, Venables and Thompson would not have been convicted of Bulger’s murder; they were both ten years of age at the time of the offence. Herring describes how criminal capacity is not simply about understanding the facts but being able to use those facts to make decisions. When observing the case of Bulger, elements such as the abduction and the use of weapons evidently suggest the pair’s premeditation to kill; this would perpetuate coherence in their decision-making. Similarly, in the Brianna Ghey case, a plethora of social media exchanges evidenced how Jenkinson and Radcliffe meticulously planned the killing of Brianna. Inevitably, had these children not been convicted for the murder, this would have left a gap in the law regarding retribution and ignited even greater public outrage. Perhaps this poses the question of children’s criminal responsibility as individualistic; some children may have the capacity to kill, whilst others may not. As the law requires coherence, this may explain why the courts have opted for a lower set standard of criminal responsibility that applies to all, whilst offering additional provisions that are discretionary based on the circumstances of the case.
Reporting restrictions regarding youth offenders
One provision that has been permitted for youth offenders is restrictions on reporting criminal proceedings involving those under the age of 18. This is outlined in section 49 of the Children and Young Persons Act 1933, which states: “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”. There are two exceptions where such reporting restrictions may be lifted: if the effect of the restriction imposes a substantial and unreasonable restriction on reporting or if it is in the public interest. Such restrictions give rise to a conflict between two interests: the rights of the media to free expression and the rights of privacy for the youth offender.
Those who oppose restrictions on the reporting of youth offenders often rely on the public interest argument, as it is explicitly stated as an exception to the restriction. They argue that the ability of the media to report freely on criminal proceedings is always in the public interest, particularly in such high-profile cases like murders where such reporting serves the greater purpose of protecting the public. Mrs Justice Yip justified her decision to lift the restriction and name Jenkinson and Radcliffe (who had previously been referred to as Girl X and Boy Y): “There is a strong public interest in the full and unrestricted reporting of what is an exceptional case”. Media reporting also serves the function of preventative deterrence by publicising the name of those who commit criminal conduct, as it deters others from doing the same whilst educating families on how to recognise dangerous behaviour in their children. Sir Richard Henriques who led the prosecution of Venables and Thompson articulates this: “The public interest here requires or allows parents, grandparents, godparents, aunts and uncles say to themselves, could this happen to our family?”. Opponents strongly believe that unrestricted media reporting supports the notion of open justice, serving a greater interest to the public than those of the youth offenders.
However, supporters of the restrictions offer a different perspective. One of the key functions of the justice system is rehabilitation; this is particularly poignant where children are concerned as many believe that they should be allowed to grow out of their crimes and not be burdened later by youthful indiscretions. The uncertainty surrounding the capacity of children to make criminal decisions offers a greater chance that they can be rehabilitated in later life, such extensive reporting acts as a hindrance to such rehabilitation. Gibbon observes a point raised by a counsel that she interviewed; they argued that the significant harm caused to the defendant and their families outweighs the trivial contribution to public interest: “To me, it fits with the process of demonising children…deployed strategically as moral scapegoats”.
Anonymity Injunctions
Once released from prison, defendants can apply for anonymity injunctions that prevent reporting on their whereabouts upon their release. When Venables and Thompson were released from prison (now adults), an application was made on their behalf for an injunction to safeguard their continuing anonymity. Their claim succeeded based on Art 2 of the ECHR (the right to life) and Art 3 (no one should be subject to torture or to inhumane or degrading treatment or punishment); Lord Justice Butler stated in the judgment awarding the injunction: “The claimants are uniquely notorious, and their case was exceptional”.
Supporters of such anonymity injunctions argue that a release without such provisions prompts direct conflict with the defendant’s “right to life”, under Art 2 of the ECHR. Due to the high-profile nature of the case and a strong sense of public feeling, there would most likely be a high probability that the two offenders would be at risk of serious violence and death, as a result of “lynch mob mentality”. A release without additional protections could have been equated to essentially sentencing the two to death; this would be gravely detrimental to the notion of rehabilitation, particularly as Robert Thompson appears to have not reoffended since his release.
Those who oppose anonymity injunctions argue that freedom of expression (as perpetuated by Article 10 of the ECHR) should take priority, to ensure due protection of the public upon their release. This argument is particularly poignant after Venables was sent back to prison in 2018 , after being convicted of accessing indecent images of children. The father and uncle of James Bulger then pursued a legal challenge to overturn the lifelong anonymity injunction protecting Venables; Robert Makin (the solicitor advocating for the Bulgers) argued that they were not applying for a total discharge, rather a variation of the terms to allow some information to be revealed. They argued that the current rationale of the court was flawed; if they wanted to protect Venables, they should act against social media companies where details of the murderer had become “common knowledge”. Ultimately the court ruled that Venables’ anonymity injunction should be maintained, holding that: “The reality is that the case for varying the injunction has simply not been made,”. his raises the question of whether anonymity injunctions are untenable in a world where social media is growing in prevalence, as regulation of information shared on online platforms is far more difficult for courts to regulate than information circulating in the media.
To conclude, we must address whether protections offered in cases of youth offenders are truly outdated. The cases of James Bulger and Brianna Ghey, though 30 years apart, present parallels in the criminal justice system’s dealing with child killers. The process followed in the case of Bulger appears to have been mimicked in the case of Ghey for similar reasoning; the more notorious a case, the more it commands public interest. Protections must likely be waivered to retain such public interest and to allow the law to function correctly in its protection of the public. In regard to anonymity injunctions, it appears that an increase in social media presence may have made such provisions untenable, and therefore amendments may be made in the future to rectify their function. Though there is little reporting of what provisions will be made for Jenkinson and Radcliffe once they are released, a similar application will likely be submitted for an anonymity injunction. However, whether such provisions will be granted remains unclear.
Bibliography
Statutes
Criminal and Young Persons Act 1933
European Convention on Human Rights 1953
Licensing Act 2003
Sexual Offences Act 2003
UN Committee on the Rights of The Child
Case Law
Venables and Thompson v NG Newspapers Ltd [2001] 1 WLR 1038
Secondary Sources
Rice G and Thomas T, “James Bulger- a matter of public interest?” (2013) International Journal of Children’s Rights < https://heinonline.org/HOL/P?h=hein.journals/intjchrb21&i=3. > accessed 15 March 2024
Siddique H, “James Bulger’s father loses bid to overturn Venables’ anonymity,” The Guardian (London, 4th March 2019) < James Bulger's father loses bid to overturn Venables' anonymity | James Bulger murder | The Guardian> accessed 11 March 2024
Herring J, “The age of criminal responsibility and the age of consent: should they be any different?” (2016) 67(3) NILQ <m-selwood,+Journal+manager,+NILQ+67.3.7+Herring (1).pdf > accessed 5 March 2024
Fitz-Gibbon K, “The Naming of Child Homicide Offenders in England and Wales: The Need for a Change in Law and Practice” (2017) 57(5) The British Journal of Criminology <The Naming of Child Homicide Offenders in England and Wales: The Need for a Change in Law and Practice (lexis.com)> accessed 10 March 2024
Hirst L and PA Media, “Brianna Ghey murder: Teens guilty of ferocious killing” BBC News (Manchester, 20th December 2023) < Brianna Ghey murder: Teens guilty of 'ferocious' killing - BBC News> accessed 10 March 2024
Garnett N and Hirst L, “Why teenagers who killed Brianna Ghey can be named” BBC News (Manchester, 2nd February 2024) < Why teenagers who killed Brianna Ghey can be named - BBC News > accessed 5 March 2024