Privacy in criminal proceedings
Article 40(1) of the UNCRC recognises ‘the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth’ in ways that might best enable ‘the child’s reintegration’ and ability to assume ‘a constructive role in society’. More specifically, Article 40(2)(b)(vii) provides the child’s right ‘to have his or her privacy fully respected at all stages of the proceedings’ and the United Nations Committee on the Rights of the Child (2007: para 29) reminds ‘States parties that... no action may be taken that can hamper the child’s full participation in his/her community, such as stigmatisation, social isolation, or negative publicity’. Further, the NSW Privacy Commissioner has stated:
To allow the public naming of children convicted of mid-level crimes will deprive children of their human dignity and damage their chances of rehabilitation. Publication of a child offender’s name will effectively add to the sentence imposed by the court, doubly punishing child offenders with lifelong stigmatisation - a constant fear that one day a future employer, or neighbour, a friend or colleague will trawl the internet or newspaper archives and find out about the mistakes they made as a 15-year-old. Their chances of rehabilitation will be substantially reduced as a result.
(Johnston 2002: 2-3)
Similarly, the four UK (England, Wales, Northern Ireland, Scotland) Children’s Commissioners (2015: 44) have recommended that ‘children... should be entitled to privacy at all stages of the criminal process including following conviction and sentence’. In practice, however, children’s and young people’s rights to privacy in criminal proceedings are inadequately protected in Australian jurisdictions and in England and Wales.
As part of a broader and politically motivated punitive approach to youth justice in Queensland, for example, amendments to Youth Justice Act 1992 (Qld) - that were introduced in 2014 - allowed for the public identification of children and young people appearing in courts for a second offence, even if the same amendments were reversed in 2016 by a new State government. In the Northern Territory there is no legislative or common law presumption of non-publication of children’s and young people’s details in criminal proceedings and publication can only be restricted by a specific court order made under section 50 of the Youth Justice Act 2005 (NT). Moreover, the Northern Territory police have been known to use their official Facebook page to publish names and photographs of children as young as 11 years who are wanted for questioning (Vanovac 2017; see Chapter 3). In England and Wales, the courts have a power but not a duty to prohibit publication of children’s details in press, online and broadcast media when they are appearing in criminal proceedings.
Furthermore, children and young people subject to civil orders (such as IP-NAs in England and Wales and Prohibitive Behaviour Orders (PBOs) in Western Australia) are afforded even less protection than those appearing in the courts. Indeed, there is a presumption that children and young people subject to an IPNA ‘will be publicly named unless the court orders otherwise’ (Children’s Kights Alliance for England 2015: para 83). Such as approach is consistent with the earlier practice of ‘naming and shaming’ children and young people subject to an ASBO (United Nations Committee on the Rights of the Child 2008: para 36(b)). In Western Australia, section 34(2) of the Prohibited Behaviour Orders Act 2010 (WA) actually requires the publication of identifying characteristics such as home suburb and photographs of individuals subject to a PBO, including children aged 16 years and above.7
The practices of‘naming and shaming’ children and young people in conflict with the law amount to an unequivocal violation of their human rights and the United Nations has recommended that both the Australian government (United
Nations Committee on the Kights of the Child 2008: para 36(b)), and the UK government (United Nations Committee on the Rights of the Child 2012: paras 41-42), should act to end them.
The conditions and treatment that child and young prisoners routinely experience, together with the size and composition of penal populations, comprise clear indicators of human rights compliance, or otherwise, within youth justice systems. The most pertinent provisions of the UNCRC are both clear and consistent with the wider corpora of human rights standards, treaties, rules, conventions and guidelines: ‘detention or imprisonment of a child shall be... used only as a measure of last resort and for the shortest appropriate period of time’ (Article 37(b)); ‘every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so’ (Article 37(c)); and ‘no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment’ (Article 37(a)).