The Divisional Court (Jeremy Baker LJ and Jay J) has quashed the decision of Mr Justice Garnham, sitting in the Crown Court at Birmingham, to grant an excepting direction lifting the anonymity of a 16 year old following his conviction for murder.
BSW and his co-accused, both then aged 15, were convicted on 26 July 2024 of murder and manslaughter respectively of Hassam Ali (also aged 15) in Birmingham City Centre in January 2024. The sentence was fixed for 1 November. At the outset of the proceedings an order had been made under section 45(3) of the Youth Justice and Criminal Evidence Act 1999, prohibiting publication of any matter if it was likely to lead members of the public to identify either of the accused. On 28 October PA Media made an application for an excepting direction under section 45(5) and (6) of the 1999 Act, which would dispense with that restriction.
PA Media’s application was not served directly on the parties in the proceedings, and the court did not forward it to them. They only became aware of the media’s application at the sentencing hearing on 1 November. The judge declined a request from the defence to adjourn consideration of the application for a week. He listed the application on 5 November, and requested a response to the application from the Birmingham Youth Justice Service (BYJS), who had completed the Pre-Sentence Report, by 4 November, the next working day. On 6 November Garnham J made an excepting order in respect of BSW but not his co-defendant. BSW applied for judicial review of that decision.
On 20 December the Divisional Court held that Garnham J’s decision was procedurally unfair, as it did not provide BYJS sufficient time to be able to gather the information required for the Court to make such a grave decision, in particular as to the impact lifting the order would have on BSW’s welfare and his prospects of rehabilitation. Although PA Media had breached Criminal Procedure Rule 6.5 by not making the application as soon as reasonably practicable, the judge should still have afforded BYJS and the defendant more time to respond.
BYJS, as an interested party to the judicial review, submitted evidence from BSW’s youth justice worker, who completed the pre-sentence report, setting out the material that would have been provided to the Crown Court had time been available at first instance. The Divisional Court admitted and relied heavily upon that evidence. Having found a public law error, it undertook the balancing exercise for itself in accordance with the principles summarised in KL [2021] EWCA Crim 200, (“KL”). Weighing the grave nature of the offence and the vital importance of open justice against BSW’s welfare and the likely effects of the order on him, it concluded:
we consider that for the reasons provided by Ms Crisp after consultation with a wide range of properly interested parties, including fellow professionals involved in the assessment and rehabilitation of BSW, there is real substance in the particular issues which she has identified concerning BSW’s welfare, and indeed the interests of the wider society. In this regard, we accept that not only is the period of the next two years a significant period of time in terms of duration, but it occurs at a crucial time in BSW’s development when the imperative of rehabilitation requires optimisation, rather than being risked by the damage likely to be caused by his identification.
On that basis the Divisional Court remade the decision for itself and maintained the statutory reporting restrictions. Finally, the Court emphasised that in future cases where children are convicted of very serious offences, “the parties and others who may have statutory responsibility for the accused’s welfare” should “give consideration to the potential issue of identification from an early stage of the proceedings, so that the court is enabled to be equipped with the evidence it will require to make these difficult decisions in a timely manner.”
The case provides an unusual example of an excepting direction being quashed or overturned by the superior courts, and emphasises the importance of a. proper timetabling of applications as emphasised in KL and by Mrs Justice Tipples in BGI [2024] EWCR 5; b. the vital role of youth justice services in obtaining cogent evidence as to any negative effect that lifting reporting restrictions is likely to have on a child defendant’s development; and c. the importance of the potential for the rehabilitation of those convicted of the most serious crimes, in the light of the wider purpose of the youth justice system.
BYJS were represented by James Robottom and Danielle Manson