Naming and sentencing children in criminal proceedings: seminar in honour of Issy Forshall KC

Posted by NAYJ on Feb 15, 2024

The event was in honour of the work of Issy Forshall KC whose work in bringing a criminal appeal against sentence for her young client ZA led to a guideline judgment written by Mrs Justice May, the judicial lead for children. Maryam Mir, junior counsel in the case, reflected on the realities of representing ZA who was extremely vulnerable and had managed to get involved in something way more serious than he had ever imagined. However, it was his utter dismay when he found out that his sentence would see him turn 18 in prison that prompted her and Issy to appeal the sentence. 

The decision sets out, step by step, how the sentencing of children should be approached. It is beyond awful that Issy did not live to see the judgment.  Mrs Justice May described Issy’s defence of ZA as “dogged and fearless”.  She called on criminal practitioners to make sure that they do everything possible to ensure enough time is set aside for sentencing hearings and that appeals are marked as urgent, especially if there is a reasonable prospect that a custodial sentence might be overturned or reduced before a child turns 18. She also emphasised the importance of making sure the relevant guidelines are put to the Court in children’s cases: the overarching guideline on children and young people will always be relevant. But there are specific guidelines that apply to children convicted of sexual offences, robbery offences and offences concerning bladed articles. Mrs Justice May reminded delegates that adult guidelines do not apply to children.

Mel Stooks, solicitor at GT Stewart Solicitors outlined a practical checklist of things to consider when children are being sentenced, which included getting key information to inform the sentencing process, such as custodial reports, social care records and working out the impact of remand or time on electronic curfews or while remanded to Local Authority accommodation and custodial sentences on leaving care rights.

The consequences of turning 18 in the criminal justice system were at the forefront of our discussions throughout the afternoon. The seminar, which was less than a week after two child defendants in the Brianna Ghey case were named, also included a panel on naming children in criminal proceedings.

The naming of children in criminal proceedings is always a conscious decision and one that can have profound implications for children's rehabilitation. It may not always be apparent to criminal practitioners at the time but the expiration of reporting restrictions at the age of 18 means that a young adult can find their past is opened up, posted on social media and find themselves ostracised and hounded out of their own communities. Where it is apparent that a young person's life or rehabilitation will be at risk if they will be named, practitioners should resist the lifting of restrictions. Laura O'Brien, solicitor and partner at Hodge Jones and Allen outlined the steps practitioners need to take in the criminal courts. But where such applications fail or the risk will persist once the child turns 18, it may be necessary to seek an order from the High Court for anonymity.

Edward Fitzgerald KC who has been involved in five of the nine instances where such applications have been granted, outlined how the law in this area has evolved since the first case, which concerned Thompson and Venables, who were responsible for the murder of James Bulger, aged two.  He explained how in that case Lady Butler-Sloss held that the threshold for an order prohibiting the publication of anything leading to the identification of the two boys was high and required evidence of a risk to life. However, over time wider considerations have been accepted, culminating in the case of RXG. RXG was the youngest ever person to be convicted of terrorism offences. The High Court granted him anonymity on the basis of the risk to his rehabilitation as a result of both his autism and the risk he would be targeted by fundamentalists seeking to radicalise him again.

Yet, the stress of bringing such applications and impact on young people themselves cannot be underestimated. As I explained, there is an inevitable Catch 22 situation in these cases, which may involve second guessing the consequences of being named and gathering evidence to prove it before the child is actually named. The very process of gathering threats and hostile commentary can be terrifying for the child, as can the reporting that inevitably accompanies the application for anonymity. 

As the NAYJ Briefing paper on Open Justice, published on 7 February 2024 argues, the direction is all one way - towards open justice. However, open and transparent justice should not be confused with naming and shaming, as the family court pilots have shown. The law is in serious need of reform so there are simple ways for criminal courts to protect children's identities for life as they can currently for victims and witnesses. Until then practitioners need to keep their wits about them to ensure child defendants are kept safe and aware of the long-term risks of being named.