RXG v Ministry of Justice & Ors

The High Court retains jurisdiction under Human Rights Act 1998 section 6 to extend a former child defendant’s anonymity beyond the age of 18. Section 45A of the Youth Justice and Criminal Evidence Act 1999 did not curtail that jurisdiction.

Articles 2 and 3 require convincing evidence of a real and immediate risk of serious harm or death. If that threshold is met, those unqualified rights cannot be balanced against article 10. Otherwise, the court must conduct an intense, fact-specific comparison of articles 8 and 10, beginning from presumptive parity.

Post-majority anonymity will be rare and exceptional. It may nevertheless be necessary and proportionate where identification would seriously damage a former child offender’s mental health, rehabilitation and reintegration. Any order remains reviewable upon a material change of circumstances.

RXG committed two offences of inciting terrorism when aged 14. Reporting restrictions imposed under section 45 of the Youth Justice and Criminal Evidence Act 1999 protected his identity only until his 18th birthday. Before then, he brought a Part 8 claim for a contra mundum injunction extending that protection.

Expert evidence indicated that identification would associate RXG permanently with his childhood offending, jeopardise his psychological development and rehabilitation, and increase his vulnerability to exploitation and re-radicalisation. The Ministry of Justice considered that there was no current real and immediate threat to his life and that the prison and police could manage the physical risks.

The court determined whether the established Venables jurisdiction survived section 45A of the 1999 Act, whether articles 2 or 3 were engaged, and whether RXG’s article 8 rights outweighed the article 10 interest in open justice.

1. Application granted. The court extended the prohibition on identifying RXG until further order. The restriction remained reviewable upon a material change of circumstances: paras [71]–[72].

2. Section 45A of the Youth Justice and Criminal Evidence Act 1999 did not oust or curtail the established Venables jurisdiction. That jurisdiction derives from section 6 of the Human Rights Act 1998. Parliament had not expressed a sufficiently clear intention to remove it. Section 45A placed protection for child witnesses and victims on a statutory footing, while leaving applications for extended protection available under the established jurisdiction: paras [24], [36]–[40].

3. Articles 2 and 3 were not engaged. Their threshold required convincing evidence of a real and immediate risk of serious harm or death. General, speculative risks and hostile online rhetoric did not establish a credible threat. The HMPPS assessment was more reliable and showed that the prison service and police could manage the risks: paras [52]–[54]. Where that threshold is met, however, those unqualified rights cannot be balanced against article 10: para [35].

4. The conflict between articles 8 and 10 required the parallel analysis identified in In re S. Neither right had inherent precedence. The court had to examine the justification and proportionality of interfering with each right and focus intensely on their comparative importance in the individual case: para [55].

5. RXG’s article 8 interests carried exceptional weight. He had offended as a vulnerable child, had subsequently been diagnosed with autism, and had made substantial rehabilitative progress while protected from identification. Publication would create a permanent internet record, expose him to ostracism and isolation, impair his mental health, and undermine the development of a stable, pro-social identity. Successful rehabilitation also served a significant public interest: paras [56]–[68].

6. Article 10 and open justice carried great weight. The public had a legitimate interest in the identity of convicted offenders and in understanding serious terrorist offending. Parliament had also provided that ordinary youth reporting restrictions end at adulthood. Nevertheless, exceptional cases may justify anonymity where the individual and concrete harm makes the restriction necessary and proportionate. This was such a case: paras [69]–[71].

The claim was a first-instance Part 8 application. Sir Brian Leveson P granted an interim injunction on 20 June 2018, continuing the existing reporting restrictions beyond RXG’s 18th birthday pending determination of the claim.