“A considerable amount of expertise has gone into explaining how and why [RXG] became so radicalised. It appears he felt isolated in terms of his education and home life. There was a vacuum in his life which he filled with religious extremism. Over the period from 2012 to 2015 his behaviour gradually changed and certainly from 2014, he was accessing extremist material on the internet… He communicated with extremist propagandists who either worked for ISIS or supported their aims over the internet. They were experienced recruiters who were keen to enlist young impressionable Muslims to the cause. They groomed [RXG] and then started to use him to carry out their wishes. They succeeded in turning [RXG] into a deeply committed radical extremist. One professional who dealt with him had never encountered such entrenched extremist views… No doubt lessons can and have been learnt by many people from the unique circumstances of [RXG’s] case but there is no material before me from which blame should be attributed to anyone, except those extremists who were prepared to use the internet to encourage extreme views in a boy of 14 and then use him to carry out terrorist acts.”
“… the professionals and management involved in this case have convened and recognise that if [RXG]’s name were to be released into the public domain, there is potential for various repercussions which should be taken into account when considering this application. An immediate concern that arises is the potential for [RXG] being placed at risk. Highlighting his identity may lead to him being targeted within the custodial estate from those who might perceive there to be a need for retaliation for his offence. Within most adult prison populations there is likely to be a representation of those who are not only minded to seek retribution, but also willing and able to cause harm to [RXG]. In addition to a risk to [RXG] directly, his family, in particular his parents, brother and younger sisters, are also likely to be identifiable as a consequence of his identification. This also potentially places them in harm’s way by their association. This would cause further trauma to the family who have already had to resettle from their family home following [RXG]’s initial involvement in the Criminal Justice System. One specific area of concern regarding his siblings is around the education provision of his younger sisters. The school is already anxious regarding the situation and there is a strong likelihood that the naming of their older brother would lead to the girls being made to move school again to avoid the negative attention for the family and the school… It appears that [RXG] is making steady progress though his sentence… Progress is certainly evident in [RXG]’s presenting attitudes and alongside this it is acknowledged that his behaviour within the secure estate has been extremely positive since very early in his sentence. A concern, therefore, is that identifying [RXG] has the potential to undo the progress made if he were to perceive that he had been let down by ‘the system’. This could mean that [RXG] takes backwards steps from his current position or even reignites any hostile feelings he once held and expressed towards certain sections of society… … [H]is naming within the public domain could hinder [RXG]’s rehabilitation in the immediate future but even if he were to overcome that obstacle, considering the long term consequences, his ability to ever effectively resettle would be made extremely difficult if his name became something that could be easily recognised as associated with extremism on any internet search engine.” … [H]is naming within the public domain could hinder [RXG]’s ii) An assessment by Dr Louise Bowers, a Forensic Psychologist, dated18 June 2018 , based on an assessment of RXG on4 June 2018 . She assessed the likely impact on RXG of removing his anonymity as follows: “Immediate effects First, if RXG’s identity is exposed by the media following his 18th birthday, there will inevitably be intrusive media reporting of the case. In my experience, cases that involve young children who commit unusual offences generate strong feelings in the public. Hostile reporting or simply being identified as ‘a terrorist’ will inevitably cause RXG distress and will evoke feelings of shame and humiliation. It is probable that this will have a profound impact on his psychological well-being and could lead to mental health problems. Second, if RXG is identified as the young person who planned a terrorist attack on the Anzac Parade, it is likely that he will be shunned and rejected by his peers at [Secure Setting] who will feel betrayed and misled by him. If this occurred, RXG would quickly become isolated and lonely which would inevitably have an impact on his confidence and self-esteem. Third, if RXG’s identity is exposed, I would be concerned that he might feel let down by the professionals he works with and he may want to distance himself from them. This would then remove him from a vital source of psychological support at a critical time and could impact on his on-going therapy and intervention. Fourth, being labelled as [a] terrorist is likely to make it very difficult or even impossible for RXG to continue the process of developing a new pro-social identity… His reintegration into, and continuing rehabilitation within, the community… I continue to work with a number of young people who have committed serious offences as children and have been released from custody as young adults. Most of them have not had their identities protected, but some have. From this experience, I conclude that if RXG’s identity is exposed and he has to attempt to reintegrate into the community identified as ‘a terrorist’, this will severely limit or totally block his opportunities to find suitable education or employment. It is likely that he will be rejected and shunned by society, and given his ASD and associated social difficulties, forming relationships in these circumstances will be very difficult and could become impossible for him. Rejection, a lack of meaningful activity and social isolation were all features of RXG’s life at the time he was offending, and a return to these circumstances is likely to significantly affect his mental state and undermine his rehabilitation. His ability to engage with support and probation services RXG has ASD and as is often the case with individuals with this condition, he likes rules, structure and routine. In my view, RXG is highly likely to comply with his licence conditions and what is asked of him by the Probation Service whether his identity is protected or not. If RXG’s anonymity is removed, in my experience, providing these services would be much more challenging for the Probation Service as they would need to protect him from harassment, abuse and direct harm in the community whilst he accessed them. How his family may be affected, and in turn the effect this will have on him I have no knowledge of RXG’s family and I am unable to say how they may be affected if RXG’s identity is exposed. However [the Youth Justice Service] provided evidence of multiple potential impacts. RXG is very concerned about the impact exposing his identity could have on his family. He does not fear his family would withdraw their support if he and they were identified, but if this occurs, this would increase RXG’s feelings of guilt at a time when he will be psychologically fragile. RXG was extremely troubled by this aspect of the forthcoming proceedings, and he appeared more concerned about the impact of exposing his identity on his family than the impact for himself.”
“When RXG turns 18, he could be transferred swiftly to either a young offenders institution or given the nature of his offence, an adult prison. I currently work in both types of establishment. Prison officers are trained to support and protect vulnerable young adults in their care but vigilante attacks still do happen. In my experience, there is a certain respect prisoners can gain from attacking notorious offenders and some prisoners view these sorts of attacks as a badge of honour. If RXG enters the prison system identified as the youngest ever convicted terrorist, he could become a target for those who would want to and be capable of harming him.. RXG is not street-wise and his ASD makes understanding his social world and particularly new social situations difficult for him. Consequently, making the transition between the protected environment of [Secure Setting] and a prison will, in my opinion, be traumatic for RXG. If RXG’s identity is exposed and he has to live under the constant threat of being harmed, it is likely that this will have a significant impact on his psychological functioning, to the point where his mental state could well deteriorate… Continuing to protect RXG’s formal identity will, in my view, go some way to helping him to make this transition and continue his rehabilitative journey without significantly undermining the psychological progress he has made so far.” iii) Lochlinn Parker, RXG’s solicitor, has provided five witness statements dated13 June 2018 ,13 September 2018 ,6 November 2018 ,22 November 2018 and5 December 2018 respectively. In his second witness statement, Mr Parker has exhibited media reports and social media commentary that attended RXG’s original criminal proceedings and the present application to continue the reporting restrictions. He summarised the coverage as follows: “The public reaction, gauged through social media commentary, has been overwhelmingly negative. Stories or social media posts have generated hundreds of replies. There is concern that the rights of potential victims and the wider public will be subordinated to those of RXG. There is anger that RXG is able to access the Courts at all, and to be in receipt of Legal Aid. There has also been, as there was previously, Islamophobic and racist commentary.”
“Terrorist. Traitor. String him up. What use is he to humanity” (@JAGKEV) “Release him to me, his identity will remain secret for life, I promise never to tell anyone where I buried the fucker” (@andyjonesKipper) “No he should be executed” (@asificared2) “Linch him (sic)” (@Chriss31745842) “no, he should be hanged” (@angelauk1900) “Nope… and give him a injection while his name is pronounced slowly…” (@colesypontyboy) “NO. He should be publicly hanged with his remains being fed to pigs” (@andyjgoldie) “Trip to the scaffold and an unmarked grave. Gives him plenty of anonymity” (@pnicholas79) “Hang them all. The tax Payer does not want to pay for their upkeep” (@_Wibble_) iv) An email from a Probation Counter Terrorism Lead in the Security, Order and Counter Terrorism Directorate of the National Probation Service, dated19 July 2018 , in which he confirmed that the Probation Service was experienced in working with other agencies in the management of high-profile cases and those where offenders may be under threat from others. v) A letter from Detective Chief Inspector Andrew Meeks of Counter Terrorism Policing North West, dated30 July 2018 , who was the Senior Investigating Officer in the case which resulted in RXG’s conviction. He confirmed that the police could provide no material to support RXG’s application for continued anonymity. He added: “If, in the event [RXG] were identified at a future date, we came into possession of information to suggest that he was at risk of harm, we would of course take action in accordance with our statutory responsibilities.”
“RXG… currently has media anonymity which affords him some protection from being recognised and pursued. Should this be removed, this may increase his risk, particularly if transferred to the adult estate where he may be exposed to other individuals engaged in the Daesh or other extremist ideology. Such individuals may target him especially given the controversial nature of his offence and his vulnerability due to his age… and ASD. Whilst anonymity might not totally serve to prevent this occurring it may assist in managing this risk particularly in the adult estate. Conversely, given [RXG]’s ASD it is unclear whether he would be able to maintain a cover story in the adult estate...”
“If anonymity (Additional factor) were to be maintained, this may decrease the risk although given [RXG]’s developmental disorder (Additional factor) it is unclear whether he would be able to maintain a cover story which may leave his vulnerable to mental health issues (Factor 13) particularly given his ongoing medical history. Such anxiety may motivate him to disclose his offence, particularly if approached by those he perceives to be held in high esteem as this would not only make him feel safe but also fulfil his ongoing need for status (Factor 4) and need to dominate others (Factor 6).”
“Article 2/3 risks to RXG • There is no current assessed threat of real and immediate risk to life, either in the current secure setting or from the wider public. RXG is known in his own name within the secure setting. • Open source searches of the internet, as reported in the statement from Lochlinn Parker… highlight media coverage at the time of the initial court appearance and sentencing and again when application was made to the court for an extension to the existing anonymity order. Public reaction to the coverage focuses on Islamophobic/racist statements, comments on the perceived lack of open justice and the alleged ‘injustice’ of protecting the criminal and not attending to the needs of victims. Included are a number of opinions on how RXG should be dealt with, some of a violent nature. • Law enforcement partners consider that comments attached to online reporting (both on the conviction and on the possibility of an injunction to protect RXG’s identity) are common with a story of this nature; the existence of these comments in themselves do not amount to an assessed threat against RXG. They found, based on initial intelligence checks and open source research, that there is no current assessed threat of a real and immediate risk to life against RXG. As such, these comments may be more a reflection of public outrage than an indication of credible sophisticated threats. • There does not appear to be any continued or ongoing widespread public interest in this case at present. The assessment, based on experience of managing other terrorist and youth offenders, is that there would be media interest and exposure were the offender’s identity to be reported, but that rarely manifests in any increase of any risk of threat or violence to the offender… • In sum, if the order was removed it is safe to assume the level of threat could be raised, but it is considered that this is unlikely to escalate into real and immediate threats to life. Article 2/3 risks to RXG’s family HMPPS understands there has been considerable work undertaken by police to support the family’s safety. HMPPS is not aware of any current risk or threat to the family… Article 8 risks to RXG in respect of his rehabilitation • In the event RXG’s identity is made known, our judgment is that media reporting is likely to disrupt his rehabilitation to some extent in the short term, which may be exacerbated due to his identified vulnerabilities. • However, we judge that management strategies can be effectively deployed to support rehabilitative progress and mitigate the impact of any disruption. It is the experience of HMPPS that, where youth anonymity orders fall away on the individual attaining majority, any media exposure is relatively short lived and associated risks to RXG would be effectively managed by the holding establishment and, where necessary, by the local police. Conclusion The risks to RXG and his family would currently appear to be low. It is accepted that there may be significant media coverage at certain points but it is not considered that this, on its own, will generate threats or risk of violence to RXG. Because of his vulnerability such coverage may well affect his rehabilitation in the short term but those responsible for RXG would, drawing on relevant experience, be in a position to mitigate the impact and to help him to progress…”
“[30] A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law…”
“[32] There are a number of specific consequences of the grant of an injunction as asked for in this case to be considered. First, while counsel for the child wanted to confine a ruling to the grant of an injunction restraining publication to protect a child, that will not do. The jurisdiction under the ECHR could equally be invoked by an adult non-party faced with possible damaging publicity as a result of a trial of a parent, child or spouse. Adult non-parties to a criminal trial must therefore be added to the prospective pool of applicants who could apply for such injunctions. This would confront newspapers with an ever wider spectrum of potentially costly proceedings and would seriously inhibit the freedom of the press to report criminal trials. [33] Secondly, if such an injunction were to be granted in this case, it cannot be assumed that relief will only be sought in future in respect of the name of a defendant and a photograph of the defendant and the victim. It is easy to visualise circumstances in which attempts will be made to enjoin publicity of, for example, the gruesome circumstances of a crime. The process of piling exception upon exception to the principle of open justice would be encouraged and would gain in momentum. [34] Thirdly, it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer. [35] Fourthly, it is true that newspapers can always contest an application for an injunction. Even for national newspapers that is, however, a costly matter which may involve proceedings at different judicial levels. Moreover, time constraints of an impending trial may not always permit such proceedings. Often it will be too late and the injunction will have had its negative effect on contemporary reporting. [36] Fifthly, it is easy to fall into the trap of considering the position from the point of view of national newspapers only. Local newspapers play a huge role. In the United Kingdom according to the website of The Newspaper Society there are 1301 regional and local newspapers which serve villages, towns and cities. Apparently, again according to the website of The Newspaper Society, over 85 per cent of all British adults read a regional or local newspaper compared to 70 per cent who read a national newspaper. Very often a sensational or serious criminal trial will be of great interest in the community where it took place. A regional or local newspaper is likely to give prominence to it. That happens every day up and down the country. For local newspapers, who do not have the financial resources of national newspapers, the spectre of being involved in costly legal proceedings is bound to have a chilling effect. If local newspapers are threatened with the prospect of an injunction such as is now under consideration it is likely that they will often be silenced. Prudently, the ‘Romford Recorder’, which has some 116,000 readers a week, chose not to contest these proceedings. The impact of such a new development on the regional and local press in the United Kingdom strongly militates against its adoption. If permitted, it would seriously impoverish public discussion of criminal justice.”
“… to say that his Article 8 rights were interfered with by the unlawful retention and use of his sample is one thing; to assert that in consequence he must be entitled to anonymity in respect of the subsequent criminal process is quite another.” iv) In In re Guardian News and Media Ltd the applicants challenged an order made freezing their assets on the ground that they were suspected of facilitating terrorism. Anonymity orders had been made in their favour prohibiting any report of the proceedings that enabled them to be identified on the ground that disclosure of the fact that they were suspected of facilitating terrorism might lead some people to conclude that they were guilty. It was contended that this would violate their Article 8 rights. The Supreme Court set aside the anonymity orders. Lord Rodger gave the lead judgment. Applying Campbell -v- MGN Ltd[2004] 2 AC 457 and Von Hannover v Germany(2004) 40 EHRR 1 , the test was whether the publication of a report sufficiently contributes to a question of legitimate public interest to justify any curtailment of the person’s right to private and family life. Freezing orders imposed in cases of suspected facilitation of terrorism were matters of legitimate public interest. Any damage to the applicants’ Article 8 rights was incidental. Lord Rodger noted [73]: “Although it has effects on the individual’s private life, the purpose of a freezing order is public: it is to prevent the individual concerned from transferring funds to people who have nothing to do with his family life. So this is not a situation where the press are wanting to publish a story about some aspect of an individual’s private life, whether trivial or significant. Rather, they are being prevented from publishing a complete account of an important public matter involving this particular individual, for fear of the incidental effect that it would have on M’s private and family life.”
“In most of the recent decisions of this court the question has arisen whether the open justice principle may be satisfied without adversely affecting the claimant's Convention rights by permitting proceedings in court to be reported but without disclosing his name. The test which has been applied in answering it is whether the public interest served by publishing the facts extended to publishing the name. In practice, where the court is satisfied that there is a real public interest in publication, that interest has generally extended to publication of the name. This is because the anonymised reporting of issues of legitimate public concern are less likely to interest the public and therefore to provoke discussion.”
“None of this means that if there is a sufficient public interest in reporting the proceedings there must necessarily be a sufficient public interest in identifying the individual involved. The identity of those involved may be wholly marginal to the public interest engaged. Thus Lord Reed JSC remarked of the Scottish case Devine -v- Secretary of State for Scotland (unreported)22 January 1993 , in which soldiers who had been deployed to end a prison siege were allowed to give evidence from behind a screen, that “their appearance and identities were of such peripheral, if any, relevance to the judicial process that it would have been disproportionate to require their disclosure”: A -v- British Broadcasting Corpn[2015] AC 588 [39]. In other cases, the identity of the person involved may be more central to the point of public interest, but outweighed by the public interest in the administration of justice. This was why publication of the name was prohibited in A -v- British Broadcasting Corpn. Another example in a rather different context is R (C) v Secretary of State for Justice (Media Lawyers Association intervening)[2016] 1 WLR 444 , a difficult case involving the disclosure via judicial proceedings of highly personal clinical data concerning psychiatric patients serving sentences of imprisonment, which would have undermined confidential clinical relationships and thereby reduced the efficacy of the system for judicial oversight of the Home Secretary's decisions.”
“Paragraphs 17 and 23 of the judgment [in In re S] are clear as to the approach to be followed in a case of this kind. There is express approval of the methodology in [Campbell -v- MGN Ltd] in which it was made clear that each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or ‘trumps’ the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test and stated that, at first instance, the judge had rightly so treated it. However, nowhere did he indicate that the weight to be accorded to the right freely to report criminal proceedings would invariably be determinative of the outcome. Indeed, he acknowledged that although it was the ‘ordinary’ rule that the press, as public watchdog, may report everything that takes place in a criminal court, that rule might nonetheless be displaced in unusual or exceptional circumstances.”
“… in deciding what weight to give to the right of the press to publish proceedings in open court, the courts cannot simply because the issues arise under the heading ‘private and family life’, part company with principles governing the pre-emptive restraint of media publication which have been accepted by the common law for many years in the cognate areas of contempt of court and defamation, and are reflected in a substantial and consistent body of statute law as well as in the jurisprudence on Article 10 of the Human Rights Convention”
“The courts will not maintain a common law remedy in the case of an evident intention of Parliament to displace it”
“The dependence of this area of law on statute and the extent of statutory intervention mean that it is fair to speak of a statutory scheme occupying the ground to the exclusion of discretions arising from the common law or the court’s inherent powers. Lord Steyn made this point with the concurrence of the rest of the Appellate Committee in In re S[20]: ‘Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.’”
“To my mind the privacy of a human being denotes at the same time the personal ‘space’ in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects that space from intrusion. An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate.”
“Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R -v- Peters[2005] EWCA Crim 605 ; [2005] 2 Cr. App. R. (S.) 101 (p.627) is an example of its application: see [10]–[12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet.com/child-adolescent;17 January 2018 ) is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday…”
“Parliament has recognised in the statutory scheme that the culpability of a young offender is very different from that of an adult offender. It has often been observed that there is no cliff edge for sentencing purposes when an offender reaches the age of 18. That is to ensure that the factors which lead to significantly shorter sentences for those under the age of 18 who commit the same offence as adults, reflected in any relevant guidance, does not lead to a step-change in the sentence. Youth and immaturity are always relevant factors in determining culpability.”