BSW v The Crown Court at Birmingham

An application to remove reporting restrictions identifying a child convicted in the Crown Court must be made as soon as reasonably practicable and determined through a fair, context-sensitive procedure. The court must balance open justice and the public interest in reporting serious crime against the child’s welfare, rehabilitation and privacy, giving the child’s welfare very great weight. A rushed procedure may be unlawful where it prevents relevant welfare evidence from being considered. On judicial review, the court may reconsider the balance and substitute its own decision where it has the necessary material.

BSW, aged 15 when convicted of murder, was made subject to a reporting restriction under section 45(3) of the Youth Justice and Criminal Evidence Act 1999. Following an application by PA Media, the Crown Court made an excepting direction under section 45, permitting his identification after sentencing. The application had been made only four days before the sentencing hearing, and the judge allowed limited time for BSW and the Birmingham Youth Justice Service to respond.

BSW sought judicial review, alleging procedural unfairness, factual error, insufficient attention to welfare and inadequate reasons. The central issue was whether the rushed procedure and the additional welfare evidence meant that the excepting direction should be quashed and anonymity retained until BSW reached 18.

1. Judicial review granted. The court granted permission, admitted the further witness statement of Ruth Crisp, quashed the excepting direction and substituted a refusal of PA Media’s application. The remaining grounds did not require determination.
2. Under section 45(5) of the Youth Justice and Criminal Evidence Act 1999, an excepting direction requires the court to be satisfied that the reporting restriction imposes a substantial and unreasonable restriction and that it is in the public interest to remove or relax it. Section 45(6) requires regard to the welfare of the child. The court also had regard to Article 3 of the UN Convention on the Rights of the Child, Article 8 ECHR and the principal aim of the youth justice system under section 37 of the Crime and Disorder Act 1998.
3. Part 6 of the Criminal Procedure Rules required the application to be made as soon as reasonably practicable and the affected parties to be notified. Procedural fairness is context-driven, and depends materially on the importance of the competing interests. The application, made more than three months after conviction and only four days before sentence, was plainly late. The compressed timetable risked a decision without evidence necessary to assess BSW’s welfare and rehabilitation.
4. The public interest in open justice, unrestricted reporting, public confidence and deterrence was substantial. It did not, however, displace the need to consider the particular welfare consequences for a child. The court had to approach the power to remove anonymity with very great care, caution and circumspection. BSW’s difficult upbringing, immaturity, possible additional needs, dependence on family support and the importance of the next two years for rehabilitation gave substantial weight to retaining anonymity.
5. Because the procedural error was material, the court was required to consider the balance afresh. Applying section 31(3D) of the Senior Courts Act 1981, the court was satisfied that the outcome would have been substantially different had proper notice been given. As all relevant material was before it, remittal was unnecessary; under section 31(5)(b), the court itself refused the excepting direction.

• High Court (Administrative Court): judicial review granted. The Crown Court’s excepting direction was quashed and the application to identify BSW was refused.
• Crown Court at Birmingham: on 6 November 2024, granted PA Media’s application for an excepting direction in relation to BSW, while refusing it in relation to his co-accused.