Privacy and young people: controlling anti-social behaviour through loss of anonymity

Balanced against the fundamental principle that all judicial proceedings should take place in the open in order to foster justice, fairness and transparency, is the recognition that young people are especially vulnerable to harm from publicity. As a result, the ‘open justice’ principle-that anyone can attend court and is free to report on what they see and hear in the court-generally does not apply where the proceedings concern young people. Although there are variations in the legal detail, in the UK and most Australian jurisdictions there are legislative prohibitions on publication of anything that could identify that a young person has been involved in criminal proceedings; exceptions are only permitted when publication is considered to be in the public interest. While the rationale for these restrictions is rarely expressed in terms of protecting the privacy of young people, the concern to avert harm to the young person's future development is ‘in effect, a specific application of the general right to privacy’. In recent years, the anonymity that young people have traditionally enjoyed in relation to their involvement in legal proceedings has been diminished through the introduction of Anti-Social Behaviour Orders (ASBOs) in the UK in 1999 and Prohibited Behaviour Orders (PBOs) in Western Australia (WA) in 2010. This chapter aims to explore how such orders challenge the traditional protections that young people have enjoyed from publicity in relation to their involvement in legal proceedings. It will begin by discussing the background to ASBOs and PBOs and what these orders entail. It will then examine why, in the case of ASBOs and PBOs, it is thought appropriate to allow deviation from the principle that young people should be protected from publicity. This will include an evaluation of broader shifts within the criminal justice system in order to assess whether these measures form part of a general trend of chipping away at youth anonymity. The chapter will conclude by commenting on the appropriateness of allowing publicity in such cases. It will demonstrate that, while the right to privacy (and thus protection from publicity) is not absolute and must be balanced against other interests, those interests do not justify a wholesale reversal of the prohibition on publication of identifying material in the case of ASBOs and PBOs against young people.