In the matter of an application by JKL (a minor) to apply for judicial review and in the matter of a decision of the Department of Justice [2016] NIQB 99
https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2016/[2016]%20NIQB%2099/2015_108163.htm (High Court of Justice in Northern Ireland – Queen’s Bench Division, 21 December 2016)
Background: The applicant, a 15-year-old child with Asperger’s Syndrome, was arrested in October 2015 and interviewed by police as a suspect in an alleged criminal hacking of customer details retained by ‘Talk Talk’. The hack and the applicant’s subsequent arrest attracted widespread media coverage. Several national media outlets published the applicant’s name, home town and photo, both online and in print. As well as issuing civil proceedings against various media organisations, the applicant sought relief on the basis that the respondent (the Department of Justice) had failed to protect his rights as a child. The applicant sought orders requiring the respondent to enact reporting restrictions for minors in pre-charge situations, and declarations that the respondent was acting unlawfully in failing to enact this legislation.
Held: The court outlined how statutory measures protect the identity of children who have been charged in relation to a criminal offence, but does not similarly protect children who have been arrested but not charged. The court emphasised that this issue had previously been considered by Parliament, and that the government had agreed with broadcast and print media representatives that the media’s own regulatory arrangements could be strengthened sufficiently to protect vulnerable children. The court considered the applicant’s argument that the respondent has a positive duty under article 8 ECHR to act to protect his rights through legislation. However, since a human rights challenge may not be brought on the grounds of a failure to legislate (given the preservation of Parliamentary sovereignty by section 6 of the Human Rights Act 1998), this argument was rejected.
The court also considered the applicant’s argument for declaratory relief due to the respondent’s failure to put in place any effective means to secure his article 8 rights. However, it was held that such a declaration could only be made if the respondent was found to have acted unlawfully, and that such a finding could not be made. Given the wide margin of appreciation available to the state, no positive obligation imposed by the ECHR or by domestic law had been breached. The court concluded by noting that a good case for reform in this area could be made, and that it remains to be seen whether the applicant’s case signifies a trend towards law reform.
Note: The court observed that it had been greatly assisted by affidavits from Just For Kids Law and the Standing Committee for Youth Justice, both non-governmental charities involved in advocacy for child rights protection, who intervened in the case.
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