What’s in a name? The identification of children in trouble with the law

Is there any justification for ‘naming and shaming’ children in trouble with the law? Some would argue that the public have a right to know their identity, but this briefing suggests that it can put children at risk of harm – and increase the chances that they will offend again.

The law in England and Wales on whether children appearing in court can be publicly identified is over 80 years old – enacted long before the advent of 24 hours news, social media and international law on the treatment of children in the justice system. Only children in the Youth Court (other than those subject to anti-social behaviour orders) have automatic anonymity, although the court can decide to waive it. Other criminal courts can, and usually do, grant anonymity but there is no right to it. The names of children in trouble with the law become public in three main ways:

- children subject to anti-social behaviour orders are identified so that the community can notify the police if they do not comply with the conditions of the order

- anonymity only applies to children once they have been charged with an offence so they may be identified at an earlier point, while the case is being investigated

- the court decides, usually following an application by the media at the point of conviction, that it is ‘in the public interest’ to allow the child’s name, personal details and photograph to be reported.

Not only does this legal system breach the UK’s international commitment to uphold children’s rights, but there are a number of weaknesses and anomalies that make it unfit for purpose. Apart from the obvious legal loophole that allows children to be named before they have been charged with an offence, the law is unclear about what happens when children reach the age of 18. Does anonymity ‘expire’ at this point, potentially undermining their rehabilitation? It is also questionable whether children are guaranteed a fair hearing when courts are considering whether to name them. Is a legally-aided 14 year old with little support, a match for the massed ranks of the TV and print media with the means to employ expert barristers? If publicity is allowed, the advent of social media and the internet means that it is there forever, a situation that could not have been envisaged by those drafting the legislation in 1933. An internet search immediately reveals old news reports, comments (often vitriolic) by members of the public and vigilante sites, making it very difficult for the child to put their offending past behind them. This applies not only to the child defendant, but to their brothers, sisters and other family members, who also lose their right to privacy. This situation is in sharp contrast to cases in the family courts, where the child and all family members are entitled to lifelong anonymity.

In spite of the serious consequences, we do not know how many children are being named by the courts in this way – no data is kept. Neither has there been systematic research into the impact that the experience of being publicly ‘named and shamed’ has on children’s safety, future behaviour or life chances. This means that the courts – and the media – are unaware of the effects of their actions. In the absence of this important evidence, the courts attempt to balance the principle of ‘open justice’ against their duty to consider the welfare of the child.

There is a wealth of guidance and case law, but the definition of ‘public interest’ remains vague. It is not the same as the public merely wanting to know. It must also be differentiated from the interests of the press: the Leveson Inquiry exposed the harm that irresponsible reporting can cause in the drive to get a ‘good story’.