Give someone a bad name

In the 'Mary Bell' and James Bulger cases, killers have been given new identities through the courts. But can they ever feel completely safe from later exposure?

How difficult is it to put a criminal past behind you? With notorious killers such as "Mary Bell" and the James Bulger abducters, Robert Thompson and Jon Venables, who have assumed aliases, the risk of exposure must undermine the chance of living a normal life. All have taken legal action to protect their assumed names and their addresses.

This summer Dame Elizabeth Butler-Sloss, the president of the Family Division of the High Court, acceded to an application by X, a woman formerly known as Mary Bell, and Y, her daughter, now aged 19, against News Group Newspapers Ltd and MGN Ltd for injunctions preventing their names, or information that could lead to their being traced, being disclosed. Their case was based on potential breach of confidentiality under the Human Rights Act 1998 and was unopposed by the media, the Attorney General and the Official Solicitor.

Because they involve heinous crimes, these injunctions can be controversial. Michael Caplan QC of the criminal law firm Kingsley Napley explains that it is only in "exceptional cases" that a blanket ban such as this will be imposed to prevent ex-offenders from being traced. This is because the overriding principle is that "courts are public and what happens can be reported". He advocates "allowing open justice unless it can be established that there are good grounds for an order". There are "many cases where despicable crimes have occurred and someone has been named despite having a young family. Justice must be dispensed in public and you can't hide behind a cloak of anonymity."

So when can secrecy orders be obtained? Caplan believes that press freedom will only be compromised "if you can establish exceptional circumstances; for example, if a child will be affected". There is a curious irony that in sensational crimes where children are defendants they can become household names if convicted. However, when released from prison every legal stop might be pulled out to shelter them from harassment.

Caplan says that "public awareness" of the anonymity principle "started with the Venables/Thompson case. There the court granted it because of the age of the children and the huge press interest". Dame Elizabeth, who also heard their application, found on the evidence that "their welfare was at risk". Barry Stanton, a solicitor, considers that a court "is unlikely to go much further and apply worldwide injunctions to paedophiles, murderers etc who have committed acts once they have reached adulthood. In the Mary Bell and Venables/ Thompson cases, the latter dealt with very young offenders and, in the former, Bell had developed a new life for herself that was on the point of being destroyed".

The human rights barrister Rambert de Mello refers to much earlier precedents where confidential information took precedence over freedom of expression. He says that the former Conservative politician, Cecil Parkinson, for example, "sought an injunction to prevent the mother of his illegitimate child disclosing information about their relationship. An injunction was granted until the child was 18." De Mello emphasises that this case was determined on the principle of the welfare of the child rather than on human rights. More recently, Tony Blair's family asked the courts to stop a former nanny revealing details of domestic life at Number 10.

De Mello contrasts these scenarios with situations where life and limb is in jeopardy. The Bulger killers argued that their lives were in danger. Accordingly, there was a more compelling reason to override free speech than there would be with, say, footballers' "kiss and tell" stories.

In some respects, perhaps the Mary Bell case was controversial because she had contributed to a biography written by Gitta Sereny, from whom she received some money while the book was written. Michael Caplan asks: "If you put yourself in the public gaze, how can you seek protection?" Reconciling the decision, he says that one must "read into it the need to protect the child". In practice, shielding the child meant protecting her mother.

Even if you obtain a restrictive injunction, can the protective mantle be pierced? Caplan sanguinely believes that "you can only protect anyone to a certain extent. Things get out."

Surprisingly, the Mary Bell order is binding on the world at large and breach could mean prosecution for contempt. Rambert de Mello confirms that it was "granted openly against the world to protect [the mother and child's] present and future whereabouts. People," he says "don't realise that it affects everyone in the UK, and if you disclose information inadvertently or in an innocuous way - say, at the dinner table - you could be vulnerable to prosecution. This raises issues about your own human rights to private life and freedom of expression." The former shadow attorney general Edward Garnier QC comments that it is "ludicrous that the sanction of the law can be imposed on someone who does not know about it".

Of concern is the dearth of easily accessible information about the terms of this kind of injunction. Enforcement might be easier if orders were published widely. My comprehensive search of the criminal justice website was fruitless.

Garnier argues that "natural justice requires you to know what law you are breaking". There is, he notes, "no public noticeboard, physical or electronic" where this information can be found. Whilst ignorance of the law is no defence, he considers that a different concept should apply if a court order that is not widely known about can be contravened with such serious consequences. This, he says, raises "an arguable human rights point". He would urge the Attorney General to distinguish between inadvertent law-breakers and those who consciously set out to break the law. In his opinion, orders are really intended to stymie "whole-scale distribution of the information" by the media.

De Mello points out that whether anonymity orders have real teeth also depends on the Attorney General's willingness to institute contempt proceedings. The order "applies to the UK and technically to the rest of the world". Enforcement in another jurisdiction could enter the equation.

Newspaper editors' lives are likely to become even more pressurised with the new Courts Bill. This will facilitate orders whereby third parties, such as newspapers, could be made liable for wasted costs of abortive criminal proceedings in the event of "serious misconduct". What this amounts to is unclear, but Garnier observes that there is a risk that this could comprise actions "short of contempt".

According to Home Office statistics, 25 per cent of the working-age population has a criminal conviction. Research suggests that employment reduces reoffending rates. However, a criminal record is no job reference. Where does this leave people whose names have been changed?

Stanton explains that the Rehabilitation of Offenders Act 1974 "provides that once a person has been rehabilitated under the provisions of the Act, they are to be treated as never having committed the offence". But you cannot always bury the past: "Certain sentences are not capable of being rehabilitated, such as imprisonment for life, custody for life and detention in a young offenders' institution or corrective training for a term exceeding 30 months." The period of time necessary to "spend" a conviction depends upon the offence, age when convicted, and sentence.

Full and frank disclosure also applies to particular professions or offices such as medical practitioners, lawyers, accountants, dentists, vets, midwives, pharmaceutical chemists and a range of social services. Previous names must also be given in applications for child benefit.

Stanton offers the reassurance that government bodies must "deal with information in accordance with the provisions of the Data Protection Act. Data collected about an individual which relates to the commission or alleged commission of an offence is sensitive personal data and must be dealt with in accordance with the more rigorous provisions of the DPA."

Stanton wonders whether a data controller would have to take any extra steps if it held information identifying a person in Mary Bell's situation. While Article 8 could be used to protect an individual's right to a private life, if an individual had been given a new identity, there would be little point in requiring him or her to disclose the fact of that conviction because it would destroy the benefit of the change of identity.