K, R (on the application of) v Knowsley Metropolitan Borough Council

When deciding whether to restrict identification under section 39 of the Children and Young Persons Act 1933 in proceedings concerning an anti-social behaviour order, the court must balance the public interest in disclosure against the child’s welfare, privacy and other relevant circumstances. No presumption applies in favour of or against anonymity. In interim ASBO proceedings, the absence of any finding of fact, the untested nature of the allegations and the young person’s inability to challenge them are weighty considerations. They must be balanced against the public interest in effective enforcement and open justice. The interim character of the proceedings does not make anonymity the norm, but it must receive proper weight.

The claimant, aged 15, challenged by case stated the decision of Merseyside Justices sitting at Knowsley Magistrates’ Court. The justices had declined to make an order under section 39 of the Children and Young Persons Act 1933 prohibiting publication of material likely to identify him after granting an interim anti-social behaviour order under section 1D of the Crime and Disorder Act 1998.

The interim order followed allegations of anti-social behaviour, but no live evidence had been called or tested and no findings had been made. The full ASBO was later made on the basis of five allegations, with less extensive prohibitions. The issue was whether the justices had properly approached the competing interests in publicity, enforcement, welfare and privacy at the interim stage.

1. The decision was quashed. There was no useful purpose in remitting the matter because a final ASBO had subsequently been made.

2. The court adopted the approach in T v St Albans Crown Court [2002] EWHC 1129 (Admin). Applications under section 39 require a fact-sensitive balancing exercise. The court must weigh the desirability of public disclosure, including open justice and the effectiveness of an ASBO, against the welfare, age, privacy and other interests of the young person. No general presumption should be applied.

3. In interim ASBO proceedings, the court must give substantial weight to the fact that the allegations are unproved. There may be no finding of fact, no tested evidence and no opportunity for the young person to challenge the allegations. Those matters may materially distinguish the interim stage from proceedings after a full hearing or finding.

4. The justices had properly considered the public interest in publicity, the claimant’s age, welfare and privacy. Their error was that they failed to attach importance to the interim nature of the proceedings and its consequences. The later difference between the allegations initially advanced and the basis and scope of the final ASBO illustrated the significance of that omission.

1. High Court (Administrative Court) — The case was heard by way of case stated from the decision of Merseyside Justices sitting at Knowsley Magistrates’ Court on 24 July 2003. The decision declining a section 39 order was quashed, with no remittal.