On 9 December 2016, the Chancellor of the High Court granted indefinite anonymity to two brothers, in a case the barrister for the Official Solicitor described as “truly exceptional”.
The order, granted to protect the two boys from vigilante action, means that neither their old nor new identities can be reported unless a future application succeeds in overturning the order. To all intents and purposes, a lifelong anonymity order.
The two boys, aged 10 and 11 at the time of the crimes, were convicted in 2009 of grievously bodily harm. They had committed what the trial judge described as a “prolonged sadistic” attack on two victims aged nine and 11, receiving custodial sentences set to last a minimum of five years.
At trial the pair were initially granted anonymity until the age of 18, the younger boy reaching that age in December 2016. Both have been given new identities and were released in early 2016.
The particularly violent nature of their crime, said to have been committed for no other reason than that they got “a real kick out of hurting and humiliating” their victims, would normally be considered grounds for lifting an order, going as it does to the public interest.
However in this case, the attack was so shocking that it had led to comparisons with the murder of two year old James Bulger in 1993. It had, counsel for the Official Solicitor argued, led to the brothers being vilified and given iconic status.
“They didn’t kill but they have been treated as if they had” she said, and were the subject of a “visceral” level of anger and animosity.
As a result, she said, they faced a “real possibility of being physically assaulted by vigilante groups” and at the very least, would suffer “very, very substantial harassment”.
In such circumstances, the court had to balance the competing human rights enshrined in the European Convention on Human Rights. On one side, the brothers’ right to life, their right not to be subjected to inhuman or degrading treatment and their right to respect for private and family life. On the other, the right to freedom of expression.
Granting the order, the Chancellor told the court: “I have to apply the law which includes their rights as well as the rights of their victims.” The judge also took into account the interests of the boys’ younger sibling, BR, still a teenager.
Although the Press Association had argued that the press should be free to report the original names, the order prohibits the reporting of both their original and new identities.
As counsel acknowledged, the order is “truly exceptional”, making the brothers only the fifth and sixth individuals to benefit from what is effectively a lifelong anonymity order.
While abuse of such orders could give rise to alarm, indefinite anonymity orders of this kind are made only in exceptional circumstances, all equally tragic.
In 2003 Mary Bell was afforded lifelong anonymity having been found guilty of the murder of two boys at just age eleven. Orders remain in place to protect the new identities of Jon Venables and Robert Thompson, convicted of murdering James Bulger in 1993.
Maxine Carr, former girlfriend of Soham murderer Ian Huntley, has also been afforded the protection (the only adult – at the time of the crime at least – to do so).
While cases of this awfulness are thankfully rare, the press retains a valuable role in ensuring that reporting restrictions are not abused.
The law recognises the public interest in reporting the outcome of court proceedings and the deterrent effect that the identification of those guilty of serious crimes can have on others.
Only where the potential harm to the defendant outweighs the public interest should an order be made.