A, R (on the application of) v Lowestoft Magistrates' Court

For the purposes of Children and Young Persons Act 1933, section 39, a child specifically identified in a charge may be a child concerned in the proceedings, even where the child is not an alleged victim of the offence. The court must balance the child’s Article 8 rights and best interests against Article 10 rights, freedom of the press and open justice. The child’s best interests are a primary consideration, but they do not automatically prevail. An order restricting publication requires a sufficiently strong justification, assessed on the particular evidence. Where the impact on the child is remote, speculative or unsupported, and the interference with open justice is direct and substantial, refusal of an order may be justified.

A pleaded guilty before the Lowestoft Magistrates’ Court to being drunk in a public place while having charge of a child under seven, contrary to section 2(1) of the Licensing Act 1902. The child was A’s two-and-a-half-year-old daughter. The magistrates imposed a fine and refused A’s application under section 39 of the Children and Young Persons Act 1933 to restrict publication of A’s identity.

A sought judicial review, alleging that the magistrates had misunderstood section 39, failed to consider relevant matters and gave inadequate reasons. The central issues were whether the child was concerned in the proceedings, what factors governed the discretion, and whether the refusal was lawful and correct.

1. The application was dismissed. The child was a child concerned in the proceedings for the purposes of section 39. The charge expressly referred to the child, and the offence was intended, among other things, to protect young children who might be at risk because the person responsible for their welfare was intoxicated. The phrase “in respect of whom” therefore received a broad construction.
2. The exercise of the section 39 discretion engaged competing principles: the child’s Article 8 rights and best interests, the media’s Article 10 rights, the public’s right to receive information and the principle of open justice. The best interests of a child were a primary consideration, but they were not a trump card. The approach was the ultimate balancing test described in re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593: neither Article 8 nor Article 10 had automatic precedence; the specific rights had to be compared intensively; the justification for restricting each right had to be considered; and proportionality had to be applied.
3. Section 39 did not make the interests of the adult defendant independently determinative. The practical effect of an order had to be considered, including the extent to which it would prevent the public from learning the identity and conduct of an elected councillor. The authorities on open justice, including ex parte Godwin [1992] 1 QB 190, re Trinity Mirror Plc and others [2008] EWCA Crim 50 and JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, demonstrated the substantial justification required for restrictions on reporting criminal proceedings.
4. The asserted risks to the child were weak, remote and speculative. The child was too young to be affected directly by the report, and there was no solid evidential basis for supposing that responsible adults or other children would react adversely. The interference with Article 10 and open justice would have been immediate and considerable. The magistrates therefore had a reasonable basis for refusing the order, and the decision was also correct on the merits.
5. The reasons challenge could not justify relief. The magistrates had correctly focused on the child’s interests, and the material before them contained little authority, argument or evidence. A understood why the application had been refused and was able to challenge the decision.