Under current law, anonymity can be awarded to any child or young person under the age of 18 involved in adult court proceedings but there is no statutory appeal if it is denied or withdrawn
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A young person or child in court should be able to appeal a judge's decision to lift reporting restrictions, according to recommendations laid out in a draft bill from the Law Commission .
The proposals, which can be seen in full in a report entitled 'The High Court's Jurisdiction in Relation to Criminal Proceedings' call for a new statutory appeal for children and young people.
The commission told Journalism.co.uk the draft bill will now be submitted to the relevant government department.
Under current law, anonymity can be awarded to any child or young person under the age of 18 involved in adult court proceedings, under section 39 of the Children and Young Persons Act 1933.
This prohibits publication of any details which could identify the individual. The commission says that currently, if such an order is refused, "it is doubtful whether there is any way that the child or young person can challenge that refusal".
Claire Brown, manager of the Law Commission Criminal Law team said there should be a statutory right for a child to appeal such a decision to a higher court.
"It might be very important for the future welfare of a child or young person who is on trial at the Crown Court not to be identified in the media, even if they are convicted of an offence," she told Journalism.co.uk. "The law allows the trial judge to protect them from being identified but, if the judge thinks they should be named, the Commission thinks the child should at least have the right to get that decision looked at by a higher court."
The Law Commission adds that the risk of harm to young people once their identity is made public and right to privacy under Article 8 of the European Convention on Human Rights supports a need for a right of appeal.
"Once a person's identity has been made public, it cannot be re-hidden, and any harm done by identification cannot be undone," it says in the report. "When such harm may be done to a child or young person, parliament has long taken the view that it is especially important to guard against its occurrence.
"We conclude, therefore, that there should be the possibility of challenge to the lawfulness of (a) a refusal to make a direction under section 39, and (b) a decision to discharge an existing direction under section 39, or (c) the terms of a direction, at any stage of the trial on indictment."
The report advises that such challenges should be made to the Criminal Division of the Court of Appeal:
"We have concluded, first, that new, specific rights of challenge should be part of the work of the CACD in line with other rights of challenge in recent years, especially where, as in this case, challenges will be rare; and secondly, that this kind of case is likely to require a review of the merits in order for the child's welfare to be fully considered.
"In one sense this new right would mirror the right of any person aggrieved to challenge the making of a reporting restriction. An appeal against such a restriction is made to the CACD under section 159 of the Criminal Justice Act 1988. Accordingly, it is appropriate for the child or young person's appeal to go to the same court. For all those reasons, we consider that there should be a right of appeal to the CACD."
