KL v R.

An excepting direction removing a child defendant’s reporting anonymity after conviction is amenable to judicial review because it is collateral to the trial on indictment. The Court of Appeal (Criminal Division) has no freestanding statutory appellate jurisdiction over such a direction. Its powers under Youth Justice and Criminal Evidence Act 1999 arise only when it is dealing with a substantive appeal for which leave has been granted.

Removal of anonymity remains rare. The court must give very great weight to the child’s welfare, conduct a fair and case-specific balance against open justice, and give adequate reasons. Judicial review intervention is confined to legal error or a plainly wrong balance. Exceptionality is not an additional legal condition for an excepting direction.

The applicant was convicted at the Central Criminal Court of murder committed when he was 15. He received detention during Her Majesty’s pleasure with a minimum term of 15 years.

Before trial, the Crown Court made an anonymity order under section 45(3) of the Youth Justice and Criminal Evidence Act 1999. On the day of sentence, following an oral media application, the judge made an excepting direction permitting the applicant to be named. The direction was stayed.

The applicant sought leave to appeal against the minimum term and, in parallel, challenged the excepting direction by judicial review. The court sat both as the Court of Appeal (Criminal Division) and as a Divisional Court. The central issues were the availability of judicial review, any criminal appellate jurisdiction, and the lawfulness of lifting anonymity.

1. Leave to appeal against sentence was refused. The sentencing judge was entitled to assess the applicant’s remorse, reject his account that the deceased had previously stabbed him, and record the victim impact evidence. There was no arguable basis for saying that the 15-year minimum term was manifestly excessive. In particular, deliberately bringing a knife to the planned meeting could justify a significant upward movement from the applicable starting point for a defendant under 18.

2. The excepting direction was amenable to judicial review. Under section 29(3) of the Senior Courts Act 1981, a post-conviction decision lifting reporting restrictions did not relate to the trial on indictment. It was collateral to the issues defined by the indictment, did not affect the completed trial, and did not create the disruptive satellite litigation which the statutory exclusion addresses. The court declined to follow the contrary reasoning in R v Winchester Crown Court, ex parte B (a minor) [1999] 1 WLR 788 and R v Central Criminal Court, ex parte Crook.

3. There was no freestanding appeal to the Criminal Division. Section 45 of the Youth Justice and Criminal Evidence Act 1999 gives an appellate court ancillary powers to make, vary or revoke reporting directions only when it is dealing with a substantive appeal. An application for leave is not itself an appeal. Those powers arise only after leave has been granted and cannot found a separate challenge to an excepting direction.

4. The judicial review claim failed. The governing balance gives very great weight to the welfare of a child, so removal of anonymity will be rare. It remains a discretionary, fact-specific balance against open justice and the public interest in unrestricted reporting. The reviewing court intervenes only for legal error or a plainly wrong decision. The judge’s late handling of the application was procedurally unfair, and future applications should comply with Part 6 of the Criminal Procedure Rules. However, the further evidence about family safety and rehabilitation would not have changed the outcome. The judge’s balance was not plainly wrong, and section 31(2A) required dismissal. There is no separate rule that the facts must be exceptional before anonymity may be removed.

The stay was to be removed, subject to further application.

• Court of Appeal (Criminal Division): leave to appeal against the 15-year minimum term was refused in [2021] EWCA Crim 200.
• High Court (Divisional Court): sitting concurrently with the Criminal Division, the court granted permission for judicial review but dismissed the challenge to the excepting direction.
• Central Criminal Court: the applicant was convicted of murder, sentenced to detention during Her Majesty’s pleasure with a 15-year minimum term, and made subject to an excepting direction under the Youth Justice and Criminal Evidence Act 1999.