In the matter of an application by JLK (a minor) to apply for judicial review and In the matter of a decision of the Departement of Justice [2020] NIQB 29

https://judiciaryni.uk/sites/judiciary/files/decisions/JKL%27s%20Application_0.pdf

High Court of Justice in Northern Ireland, Queen's Bench Division (Judicial Review), judgment of 26 March 2020

In October of 2015 ‘JKL’, a 15 year old child with Asperger’s Syndrome, was arrested and interviewed by police as a suspect in an alleged criminal hacking of customer details retained by ‘Talk Talk’. Shortly after being arrested, his identity was widely published through various media outlets.

‘JKL’ brought a judicial review challenge in 2016 based on article 8 privacy rights on the basis of the failure of the Department of Justice to legislate to protect the identify of children before they have been charged. This challenge was dismissed by the court. In its judgment the court set out the position that section 44 of the Youth and Criminal Evidence Act 1999 - which contained pre-charge reporting restrictions prohibiting the disclosure of material which "is likely to lead members of the public to identify" a person under 18 who is the subject of criminal investigation - had been considered by Parliament and has not been commenced after its consideration and debate. 

The original judgment had held that the measures which were currently in place to protect anonymity of minors at the pre-charge stage did not breach the applicant's Article 8 rights, when taking into consideration the wide margin of appreciation which is given to a State in adopting measures to positively enforce Article 8 rights (right to private & family life) (see Clan Childlaw's summary of that judgment here). 

JKL was set to appeal that decision to the Court of Appeal, but senior judges instead referred the case back to the High Court because a new ground of challenge had emerged when the case had come before the Court of Appeal. 

JKL's case, and this new ground was considered by the High Court, Queens Bench Division, which delivered its judgment on 26 March 2020.

JKL argued that he had faced unlawful discrimination contrary to his Article 14 Convention Rights (protection against discrimination), in conjunction with Articles 6 (fair trial) and/or 8 (right to private & family life).

The argument was that discrimination had occurred because an unlawful distinction was made between his circumstances and other youth suspects who are automatically entitled to anonymity once they are charged under Article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998.

The approach to an Article 14 claim is set out by Lady Black in the case of Regina (Stott) v Secretary of State for Justice [2018] 3 WLR 1831 and states that four elements require to be established:

The approach to an Article 14 claim

[8] In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or `other status’. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking.

The High Court considered these four elements and found that JKL’s situation did indeed raise an issue within the ambit of Convention rights, namely Articles 8 and 6, and that JKL enjoys “other status”. This conclusion was reached following the "liberal and broad" interpretations taken in other cases, of what will amount to "other status".

When addressing the third element, the court compared the situation of the applicant with children who appear before a court and stated:“The two comparators under scrutiny occupy positions in situations which are manifestly different in the context of protection of their privacy and rights to a fair trial.

When discussing the fourth element, again this was found in the negative. It was stated that there was nothing "unfair or irrational" in the State’s approach and that a clear policy rationale existed behind both the introduction of Article 22 and the decision not to commence Section 44. The court again noted the State’s margin of appreciation in respect of difference in treatment or outcome.

The High Court thereafter refused the relief sought by the JKL.


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