Application of the open justice principle to a child in criminal proceedings
Why was the name of the 17 year-old Charlie Pearce (born 3 July 200), a double rapist and attempt murderer publicised whilst he was still a child (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017); but the names kept private of the parents of the unattractive stalking – and worse – mother and her cohabitant (‘Mr JM’) of 10 year-old T in Re T (A Child)  EWCA Civ 1889 (23 November 2017). Why is it that parents who have been responsible for allowing their children to suffer sometimes serious harm while in their care are not named; whereas the name of Mr Khuja (reported on BAILII as ‘PNM’), who was not prosecuted for any offence is made public (Khuja v Times Newspapers Ltd  UKSC 49).
Most startlingly, a man (say) can be brought (as were T’s parents) anonymously – as family lawyers call it, ‘in private’ – before the family courts for relatively dire forms of ‘molestation’ of their partner or children; yet be prosecuted in public on the same facts. Are the family courts, it might fairly be asked, trying to keep something secret. Is the ‘scourge’ (as Sir James Munby P has described it) of domestic violence and abuse to be dealt with behind closed family courts’ doors?
R v Pearce rehearses the arguments which relate to questions of anonymity – or not – in the context of prosecution of a child. The principles it sets out could apply equally to all family proceedings where privacy is assumed; but where privacy, it can be argued, should not – in law – rule the day. (It should also be said that the case shows why the rule of law – and therefore English and Welsh society as a whole – needs judges of the conscientiousness of Haddon-Cave J (I find it difficult to believe that the judge did other than write up his judgement as he passed a quiet evening in his lodgings in Leicester).)
In this note I will look at the Pearce case. In a separate article I will deal with the question of whether in cases like Re T, and others involving ‘molestation’ – ie abuse – of a party, it is lawful for family judges and magistrates (despite what Family Procedure Rules 2010 may say) to grant anonymity, other than for any children involved.
Anonymity for Charlie Pearce?
Pearce’s was a nasty crime of ‘sheer brutality’ (). Aged just 17 he went out in Leicester with a ‘concrete slab’ and clubbed down a student. Whilst she was unconscious he raped her vaginally and anally, and stole her had-bag. He was found guilty of attempted murder and pleaded guilty to two rape and other charges. His victim survived thanks to excellent and prompt medical attention. Because Pearce was under 18 should his name be published?
The statutory provision which permits child witnesses, victims and defendant under 18 not to be named is a statutory exception to the open justice principle. It is set out in Youth Justice and Criminal Evidence Act 1999 s 45, which as Haddon-Cave J explains subtly, but distinctively, alters the previous position as to anonymity of children in criminal proceedings (Children and Young Persons Act 1933 s 39: (1) There must be good reason for the court to impose anonymity; and (2) this can only last while a person remains under 18 ().
Haddon-Cave J provides a text-book summary of the law in relation to open justice (-); and in particular to its operation in children cases and where the European Convention 1950 (human rights) balance – ‘intense focus on comparative… rights’ – is required by Re S (Identification: Restrictions on Publication)  UKHL 47,  1 AC 593,  1 FLR 591 (he calls the case Re S (FC) (a child) see eg ). He relates his assessment of the law to United Nations Convention on the Rights of the Child 1989 especially Arts 3 (best interests a primary consideration); 16 (no child subjected to arbitrary interference with privacy etc) and 40 (privacy of child suspects).
Haddon-Cave J refers specifically to the child’s ‘voice’ – a factor more family courts judges could perhaps bear in mind – as set out in Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24, which he explains thus:
 The rights of a child to have a “voice” finds expression in Article 24 of the EU Charter of Fundamental Rights entitled “The Rights of a Child” (“UNCFR”). Under Article 24(1) UNCFR children have the right to such protection and care as is necessary for their wellbeing: “They may express their views freely. Such views shall be taken into consideration on the matters which concern them in accordance with their age and maturity”.
 Under Article 24(2) UNCFR, in all actions relating to children a child’s best interests must be a primary consideration. Article 24(3) states: “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.
All that said, cases under YJCEA 1999 s 45 are fact specific (R v Markham and Edwards  EWCA Crim 739). Applications for anonymity should not be based only on abstract open justice principles.
Human rights balance
In his assessment of the Re S European Convention 1950 ‘balancing exercise’ Haddon-Cave J had little difficulty in saying it would not be right to ‘keep the public in the dark about [Pearce’s] identity’; and anyway he would be 18 in only seven months’ time. Article 10 (freedom of expression) and the open justice principle trumped any force in Pearce’s Art 8 (right to a private life) arguments.
Many of the same arguments as to privacy and publicity can now be addressed to the domestic abuser in family proceedings. He, or she (such as in the case of T’s mother), may not have abused another person on the scale undertaken by Charlie Pearce; but the open justice principle is a very long-standing principle which cannot be overridden by a mere rule made by subsidiary legislation passed by the negative resolution procedure. Watch this space….