Identifying Child Defendants

Introduction

In a significant moment in youth justice, the ruling in R v BGI & CMB [2024] EWCR 5 has helped establish what is hoped to be a compelling precedent for protecting child defendants’ identities from being published in the media.

The youth defendants in this case were both convicted of murder by a jury at Nottingham Crown Court on 10 June 2024. Both defendants were 12 at the time of the commission of the offence. Three media outlets applied to the courts for an order permitting them to name the defendants. The family of the victim supported the media’s request. The application was opposed by both the defence and the Crown.

Background

The defendants were the youngest convicted murderers since James Bulger was killed three decades ago. The comparison itself has generated a great deal of coverage and outrage in the media and as a consequence, an outcry from those wanting to know who was behind it. Mrs Justice Tipples DBE showed judicial restraint in her deliberation. The facts of the offence involved an incident lasting just 60 seconds during which the 19-year-old victim, Shawn Seesahai, was murdered in the Stowlawn fields, Wolverhampton. The use of a machete in this confrontation served to underline two terrible truths: the first being the prevalence of knife crime among young people and secondly the range of issues faced when dealing with such serious crimes committed by minors.

Personal Circumstances of the Defendants

The first defendant was said to be operating cognitively far below his age “… having spoken with [the first defendant] and consulted records held about him, we would assess that [the first defendant] seems to function at a lower level than his chronological age both in terms of understanding and his emotional literacy.  [The first defendant] is a child with extremely complex needs…. ”.

Furthermore, “… We would assess that naming [the first defendant] publicly would have an extremely detrimental impact on his mental health.  He is finding it difficult to comprehend his current situation and his future.  He is only 12 years old, and he has experienced multiple childhood adversities in addition to now facing a life sentence.  Lifting his anonymity could increase the likelihood of bullying and negative attention from other young people within the unit.  This in turn could have a detrimental impact on his current positive behaviour and impede the rehabilitation process.  … [the first defendant] has been exploited and is assessed as vulnerable to negative influence.  Should knowledge of his offence and conviction become more widely known, it would also have an impact on his ability to build a more positive future in the longer term.  We have also considered the likely impact of lifting anonymity on his family.  His grandmother has shared that she is very fearful for her own safety and possible repercussions should [the first defendant’s] name become known …”.”  according to social workers from the Youth Justice Service.

Regarding the second defendant, it was highlighted that “The report explains in detail the second defendant’s background and upbringing, and refers to his mother’s mental health problems.  The report identifies that whilst the second defendant is “physically mature for his age, he is still young, and it will take time for him to mature emotionally and developmentally, in an environment where he feels safe …” …In relation to the application to lift the reporting restrictions, the authors of the presentence report say this in the conclusion: “[5.2] … the lifting of [the second defendant’s] anonymity is likely to increase the likelihood of negative attention within the secure estate, and this would negatively impact on [the second defendant’s] rehabilitation, and feeling of safety within the unit.  We hope that when [the second defendant] is released from custody he can reintegrate into society and lead a law-abiding life.  However, this might be put at risk if his name is known in the public domain…  there are concerns for [second defendant’s] brother should anonymity be lifted.  He is an adolescent in school.  His current emotional wellbeing is fragile, in part due to being concerned regarding repercussions for him in the community.  The fragility in [the second defendant’s] mother’s mental health means that lifting anonymity could be detrimental for her emotional wellbeing, impacting further on her emotional availability for [the second defendant’s] brother and [the second defendant].”

The Applications by Media Organisations

Media organisations applied to have the ban on publication lifted. Several arguments were raised. There was a public interest in the investigation of serious crime and if the defendants were named it may be regarded as providing reassurance to potential victims or witnesses as the local community already knew the identity of the first defendant. From the judgment of Tipples J (§53, paragraph numbers removed):

“…there were strong reasons for open justice in this case and identified the following factors in favour of lifting the reporting restrictions.  First, the crime was particularly grave and has given rise to local concern and national revulsion.  Second, the facts are shocking.  Third, this is case where the names of each defendant matter to the reporting of the case and, as in the case of R v Charlie Pearce (Haddon-Cave J, 7 December 2017), the current reporting restrictions “leave a ‘vacuum’ at the heart of the case which exacerbates the risk of uninformed comment” which impedes the ability of the public to come to terms with the murder of Shawn Seesahai.  Fourth, the identity of the first defendant is already known within the community.  Fifth, the defendants have now been convicted of murder, which shifts the balance in favour of publication.  Sixth, there is a substantial public interest in reporting knife crime: see R v KL at [88]. Seventh, it is said that this is a case where there may be institutional failures, with issues as to whether sufficient care was taken to protect the first defendant and how it was he came to be in possession of the machete used to commit the offence.  The press want to investigate this and that requires telling people who the first defendant is and, unless his anonymity is lifted, the investigation of these important institutional issues will be impeded. Eighth, the media rely on the deterrent effect of naming defendants based on quotes from two police officers set out in editorial of The Sun which included the following “We don’t have enough deterrents these days, which is why criminals roam the streets without fear.  Naming and shaming sometimes works”.  Further, the authorities make it clear that deterrence is a relevant factor for the court to take into account…“

Yet the decision by Tipples J showed that public interest could be accommodated without endangering defendants’ well-being and rehabilitation prospects.  The court noted that because both children had more than five years left before reaching adult status that, that timeframe offered real chances of reform and rehabilitation that could be potentially wrecked by their identities being revealed.

Reform in Youth Justice

The ruling has ramifications for youth justice in England and Wales. It is another example of why the court prioritises children’s welfare over the public interest in cases involving very young offenders, even for serious crimes.

The ruling also underscores the important function of the Youth Justice Service in providing courts with advice on delicate cases concerning young offenders. Within this sphere, courts have historically placed heavy reliance on the results of expert assessments and evaluations before determining not to disclose names.

It highlights the need for fully resourced professional involvement in youth justice cases and calls as to whether sufficient investment is made into this vital section of the legal system.

The case is a stark reminder of the necessity for proper training for defence lawyers concerning youth justice. It has highlighted the stark difference in resources available to media organisations and youth defence practitioners who are typically limited under legal aid. Such an imbalance could potentially compromise the need for quality representation of youth clients in high-profile cases.

In practical terms, the decision is likely to provide useful guidance for practitioners working in youth justice. It highlights the importance of detailed background information and expert reports; It is a reminder to practitioners that Youth Justice Service reports must contain full credentials, qualifications and opinion as to prognosis pertaining to future cases where similar questions are raised.

Balancing Competing Interests

The court contemplated the seriousness of the crime and public interest. Tipples J identified that responsible reporting can act as a disincentive without compromising the identities of those concerned — an approach that provides a useful example when it comes to weighing up public interest with youth defendants welfare and prospects of rehabilitation. The case is indicative of shifting cultural attitudes when it comes to youth justice and redemption.

The court’s approach is also consistent with a growing body of research showing that using punitively oriented responses to young offenders such as these cannot replace rehabilitative services. The decision is aligned with the broader child welfare law and policies that seeks to protect young people. This suggests a recognition of the implications that public identification can have on rehabilitation and other vulnerabilities. This case also shows the changing face of media reporting on youth justice matters. Although it will still be necessary to assess claims of public interest that might justify disclosure, this decision suggests that traditional arguments for openness should be considered more rigorously than previously on the basis of child welfare considerations.

Conclusions

The decision of the court is expected to set a marker for other similar cases in the future giving direction on the issues that need to be raised when seeking to discharge reporting restrictions. This underscores the paramount importance of knowledge to address these problems. The court’s complex reasoning harmonises public interest with child welfare, giving a rational advisory template to confront the difficulties. It speaks to the need for safeguarding young defendants, no matter how serious their alleged offence may be and of finding a balance between media and public responsibilities. It provides an illustrative model for fair development to direct future justice-yielding and change-promoting actions.