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Anonymity of Young Offenders Following Criminal Proceedings

About The Author

Joseph Switalski (Guest Contributor)

Joe graduated from Durham University in 2013 with a 2:1 in Law, and subsequently undertook the Bar Professional Training Course at Nottingham Trent Law School. Joe is to start his pupillage with a leading London family law set in 2015. Outside of the profession, he endures the bittersweet existence of supporting both Leeds United and Arsenal.

Thank you to Richard Wright QC of No.6 who generously collaborated with Joseph in the preparation of this article. 

On Monday 3rd November 2014, William Cornick, aged 16, became the first person in British legal history to be convicted of the murder of his teacher within the confines of a classroom. Unsurprisingly, the case received an enormous amount of media attention. Broadly speaking, the case captured the public interest for four reasons: the age of the perpetrator, his lack of remorse, the occupation of his victim and the scene of the murder. William Cornick planned the attack over the weekend, coming to school armed with two knives. He intimated to other students what he intended to do. When he took the decision to go through with the violence, he approached his victim, Anne Maguire, without having been provoked in any way. It is rare for crimes such as this to occur in such a calculated manner.

Within days of the killing, an order was made under section 39 of the Children and Young Persons Act 1933 (‘the Act’). Such an order invokes the court’s discretionary power to forbid the publication of any ‘particulars’ that might lead to the identification of a child or young person involved in criminal proceedings, whether that be a defendant, complainant, victim or witness. It stated that William Cornick and the various other children involved as witnesses in the case were not to be identified in the media. At that stage, the rationale underpinning the order flowed from two well-known legal principles: that children are innately vulnerable and that a defendant remains innocent until proven guilty.

Following William Cornick’s guilty plea to the murder of his teacher, Anne Maguire, he was given a life sentence with a minimum tariff of 20 years before he can even be considered for release. Richard Wright QC and Mark Foley, acting for the Defence, sought to extend the operation of the section 39 order. This would have prevented William Cornick being publicly named until he turned 18. It is worth noting that this particular aspect of the provision, that which means it can only operate whilst a person is under the age of 18, is currently the subject of an appeal in R (JC and another) v Central Criminal Court (Just for Kids Law intervening) [2014] WLR (D) 497. That extension was resisted by the media, led by The Guardian newspaper. The situation had fundamentally altered; William Cornick was no longer a child awaiting trial for murder, he was a child who had been convicted of murder. In light of this change, Coulson J refused to continue the order in respect of William Cornick, allowing him to be named in media outlets.

The following morning, several newspapers carried the story on their front pages, together with a photo of William Cornick. The implications of the decision for both William Cornick and his family are not to be underestimated. What follows is an analysis of the decision, from which we can begin to form a view about how the law operates in this field. 

The Anonymity Decision in Cornick 

The first of Coulson J's observations worth noting was that regarding where the burden should lie in making a section 39 order. The statute itself adopts a discretionary tone: ‘…the court may direct that’ an order is made. Where a child is concerned in criminal proceedings either in the Magistrates’ Court or the Crown Court, they are open to being named, as any adult would be, subject to the discretionary force of a section 39 order. This is at odds with the position in the Youth Court, where reporting restrictions are automatic, subject to an application that they be lifted, as per section 49 of the Act.

The subtle difference in the operation of the law in this area is reflective of a wider tension between the privacy of children and the general principle of open justice. The legal processes determining that a youth may be tried in an adult court recognise the seriousness of certain types of offences (see CPS guidance for a full explanation). The rationale is as follows: if the offence is serious enough for it to be tried in an adult court, the youth defendant forfeits automatic anonymity as the principle of open justice outweighs the assumption of the youth’s privacy. Coulson J himself noted the longstanding relationship between freedom of the press and the public’s ability to see justice being done ‘in the open’. He cited Lord Reed JSC’s enunciation of the principle in A v BBC [2014] UKSC 25:

Since the rationale of the principle is that justice should be open to public scrutiny, and the media are the conduit through which most members of the public receive information about court proceedings, it follows that the principle of open justice is inextricably linked to the freedom of the media to report on court proceedings.

Having been charged with a homicide offence, it was obligatory that William Cornick would be tried in the Crown Court, per section 24 (1B(a)) of the Magistrates’ Courts Act 1980. As such, he came within the auspices of section 39, meaning the onus was firmly on the defence to establish that the order ought to continue. In Coulson J's own words: ‘a defendant in a criminal case can be expected to be named, unless there is an absolute necessity for anonymity.’

When should a section 39 Order be granted?

Section 39 itself gives no guidance as to the grounds on which an order is made, it merely sets out the discretionary nature of the order and points out the kind of reporting that will be restricted. However, section 44 of the Act reads as follows:

Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training. 

What we have then is a provision that requires the court to consider:

  1. The welfare of the child in a general sense; and,
  2. Whether or not the child’s surroundings make proper provision for its education and training. 

Were these the sole criteria for consideration, one would anticipate that William Cornick’s ‘education and training’ and ‘welfare’ would have been better served by having some measure of anonymity during the early years of his prison sentence (whilst he remained under 18).

However, this provision does not exist in a vacuum; one must always have regard to section 6 of the Human Rights Act 1998. Put simply, courts are explicitly identified as a ‘public authority’ and, as such, must not act in a way that is incompatible with the European Convention on Human Rights.

Consequently, the question of whether or not a section 39 order ought to be granted becomes a balancing exercise of the convention rights of the parties affected by the decision.

Right to life

The first of Mr Wright QC’s submissions stemmed from Article 2 of the ECHR, the right to life. He argued that if William Cornick were to be publicly identified as the murderer of Anne Maguire, his life would be threatened in two ways: the risk of attack by fellow inmates and an increased risk of suicide. He conceded that the threshold for establishing that position was high; the threat had to be both real and immediate.

Coulson J did not find favour with this position. In relation to the threat of attack, he could see little to suggest that William Cornick would be posed any greater threat for having killed his teacher than a murderer might face had their victim been a child. With regard to the threat of suicide, he pointed out that William Cornick had already been placed on 24-hour suicide watch, meaning the risk could scarcely be greater even if he were identified.

A Balancing Exercise 

Having unsuccessfully established his claim that identifying William Cornick would put his life at risk, Mr Wright QC then turned to the more general concept of welfare, drawing upon section 44 of the Act itself and the right to family life under Article 8 ECHR. This had to be carefully weighed against the contention of the Media, who argued that to refuse to name William Cornick contravened their rights of freedom of expression under Article 10 ECHR.

Dealing with the notion that naming William Cornick would impede his rehabilitation, Coulson J made two remarks. First, that section 39 does not expressly concern itself with rehabilitation of convicted defendants; it is for this reason that the provision can be invoked in aid of all children involved in criminal proceedings, not exclusively defendants. Second, that William Cornick had shown a complete absence of remorse for his crime. Coulson J appeared to take the view that, if anything, being able to obscure his crime from others would only impede William Cornick developing some sense of responsibility for his actions.

The latter point, in my view, is somewhat moot. It would be naïve to believe that by having his identity concealed from the glare of the media, William Cornick could block out any form of self –reflection on what was a heinous act of violence. The scope of section 39 and its application across the full spectrum of the criminal justice system requires offsetting against the precise words of section 44. ‘Education and training’ goes to the heart of what is anticipated for convicted defendants. Whilst it may be the case that the primary purpose of section 39 is to protect young people during the conduct of proceedings, there is surely a case that William Cornick would have derived significant rehabilitative benefit from having had the early part of his incarceration without the glare of media interest, especially given fellow inmates’ access to newspapers and TV coverage. 

Coulson J felt that these concerns were outweighed against two more pressing issues: the need to use public accountability as a deterrent against committing crime and the need to engage the public interest in the case. Previous decisions on this point have established a precedent that deterrence is usefully fostered via the naming of convicted criminals. Whilst I find this point difficult to accept, as punishment itself is surely a more powerful deterrent than public infamy, Coulson J could not sensibly have ignored it. The ‘public interest’ argument creates considerable difficulty. Though it might be argued that members of the public could engage with issues of school safety and ‘internet loners’ without William Cornick having been named, it is, regrettably, an aspect of human nature that we are more easily able to relate to such issues in the context of an actual case. The details of the murderer, the location and the events that led to his crime are all relevant to engaging public interest.

Coulson J's decision was by his own admission ‘finely balanced’. It is difficult to argue he made the wrong one, but what of the law in this area?

The Wider Implications

At paragraph 24 of his judgment, Coulson J endorsed the Cornick family as a loving one that had always been supportive of him. He noted, with a tenor of regret, that a decision under section 39 could not be based on their concerns, even if it was clear that their lives would be impacted. The publication of the surname ‘Cornick’ will arguably have a more profound impact on the Cornick family in the coming years than it will on their son William in prison. At paragraph 14, Coulson J made the legal position clear; section 39 concerned the child, William Cornick, and any residual impact on his family was only relevant insofar as it had an indirect impact on himself.

That a loving family, one that has been explicitly identified within the judgment as shouldering no blame for their son’s crime, should be left on the fringes of a decision that will lead to intrusion into their private affairs is surely unjust.

Consider the alternative, the section 39 order had been granted. William Cornick would have been identified within 2 years regardless. Public interest in the case, though it may have cooled, would have been reinvigorated by the publication of new details. Would there be a disproportionate cost for such a delay? The granting of the section 39 order would have allowed a period of grace for the Cornick family to fully digest a series of events that will inevitably remain with them long after the media have finished with the story. The decision of Coulson J was not wrong. The law left him with little choice. The question is whether it should have left him with more.

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Tagged: Criminal Law, Media

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