Two recent cases have highlighted the uncertainties journalists face in respect of whether they should apply for restrictions on identifying juveniles who are the subject of Anti-Social Behaviour Orders (ASBOs) either not to be imposed or to be lifted.
Local authorities and the police can apply under S1 of the Crime and Disorder Act 1998 for an ASBO to be made against anyone aged over 10 who is causing a nuisance to his neighbourhood. If he breaches the conditions of his ASBO, he is prosecuted.
Because dealing with ASBOs is a civil function of magistrates, when a juvenile is the subject of an ASBO there are no automatic reporting restrictions. An order must be made under S39 of the Children & Young Persons Act 1933, if the court wishes to prevent publication of his name, address, school or picture or any other details that might lead to his identification.
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In ASBO cases, many S39 orders have been successfully challenged. In 2000, Judge Mander, allowing the Shropshire Star’s application to lift the S39 order for a 15-year-old boy who was appealing against the imposition of an ASBO, said: "It seems self-evident that, if a court makes an order [ASBO], it should be rare indeed for the media to be debarred in any way, shape or form from reporting that."
But, in R v St Albans Crown Court, ex- parte T on 20 May 2002, Elias J ruled that the lifting of a S39 order against identifying an 11-year-old boy who was appealing against an ASBO was unlawful.
Stressing that there was a balance to be struck between the public interest in disclosing the young man’s identity and his right to privacy, Elias J concluded that the Crown Court had failed to give sufficient weight to T’s improvement in behaviour in the six months between the application for and the making of the ASBO. As a result, the S39 order was re-imposed.
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Yet the same balancing act can also work in the media’s favour. In Chief Constable of Surrey Police v (1) J H-G (2) D H-G, also on 20 May 2002, Elias J found the behaviour of 17-year-old twins had not improved – one was in prison, the other had threatened a witness in the ASBO proceedings – and there was insufficient evidence that their identification would have a damaging effect on their younger sister, as their counsel argued. As a result, the S39 order granted by the magistrates was lifted.
Tim Cotton is a trainee solicitor in the media tea
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