Reporting, the courts and young people: time to reconsider?

For decades section 39 of the Children and Young Persons Act 1933 has prevented the media from identifying minors involved in court proceedings. In a recent decision of the High Court, a leading judgment by Sir Brian Leveson P has called on Parliament to consider the effect of the section and whether it should remain in force in its current form.¹

In its ruling, the court found that section 39 automatically expires when all individuals who have been the beneficiaries of section 39 reach 18 years of age. The court concluded that this was an unsatisfactory situation, however, as section 39 covers not only defendants, but also witnesses, victims and others concerned in proceedings, all of whom have different needs. Section 39 in its current form provides blanket protection for all groups and does nothing to differentiate between these different classes of young people. The judge called on Parliament to solve the problem “as a matter of real urgency”.

Background

In November 2013, the claimants JC and RT, then 17 years of age, appeared at the Central Criminal Court. Each pleaded guilty to an offence in early 2012 of joint possession, without lawful reason, of an explosive substance contrary to section 4(1) of the Explosive Substances Act 1883. In both cases the Crown accepted that they had obtained the property without any intention of endangering life or causing serious injury to property.

A third defendant, also 17 years of age, admitted similar offences, but faced more serious charges, including under the Terrorism Act 2000. All three had the benefit of an order under section 39 restricting any newspaper or broadcast media outlet from reporting the name, address, school or other details that might identify them.

The trial proceeded against the third defendant alone, but the jury could not agree on verdicts and a retrial was ordered. Meanwhile, the Recorder proceeded to sentence JC and RT and, in each case, imposed a community penalty. At the same time the Recorder heard arguments on the effect of section 39 and held that the section, properly construed, provided that the order should continue, but would expire on the claimants’ respective 18th birthdays.

By the time of the retrial, all three defendants had reached 18 years of age. The third defendant was named as Michael Piggin, and there was no basis on which his identity was entitled to protection. As for JC and RT, whose involvement with Michael Piggin was relevant to the latter’s trial, they sought to argue that they remained entitled to the protection of section 39 and sought judicial review of the Recorder’s decision that the section 39 order expired on their 18th birthdays.

The law

It is a summary offence to breach an order under section 39. Section 39(1) provides that, for any proceedings in any court, the court may direct that:

1. no newspaper report of the proceedings shall reveal the name, address or school (or include any details calculated to lead to the identification) of any child or young person concerned in the proceedings, either as being the person by or against (or in relation to whom) the proceedings are taken, or as being a witness in the proceedings; and
2. no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in such proceedings, except to the extent (if at all) as may be permitted by the direction of the court.

To the extent that section 39 protects any child or young person “concerned in the proceedings”, the current case had “wide implications” not only for young defendants, but also for victims, witnesses, others concerned in proceedings and, of course, the media.

It was also noted that section 57(4) of the Children and Young Persons Act 1963 extended the coverage beyond newspapers to sound and TV broadcasts, but did not deal with publications in general, or comment, other than “reports of proceedings”. The Contempt of Court Act 1981, however, which focuses on a protection of the court process rather than the long-term interests of individuals participating in the process, extended to all publications.

The judge went on to note that section 46 of the Youth Justice and Criminal Evidence Act 1999 makes provision for an application to the court to give a reporting restriction in relation to a witness (other than the accused) who is over the age of 18 and in need of protection.

Further, section 45 of the 1999 Act, which is still not in force (even though 15 years since the legislation was passed) is intended to replace section 39 to the extent that it affects criminal proceedings. Section 45 provides:

“The court may direct that no matter relating to any person concerned in the proceedings shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings.”

Decision

The court found that there was “considerable force in the view” that the purpose of section 39 was to protect young people from publicity during the currency of their youth, and not into adulthood. The glare of publicity arising from contemporaneous reporting of proceedings (which themselves are highly stressful) was a heavy burden even on adults, and it was sensible that children should usually be protected from that combination. Once the proceedings were over, however, news reports of proceedings were and always have been less likely, and so there was no reason to provide the same protection.

The court did not accept the claimants’ argument that the underlying purpose of the 1933 Act was to aid the rehabilitation of young offenders, allowing them “to leave their pasts behind them”. One significant feature of section 39 was that it made no separate provision for the treatment of three entirely different classes of children involved in the adult criminal courts: as defendants, victims and witnesses. While there may be many reasons for defendants to be concerned with later reports of their criminality, the court observed that victims and witnesses did not need protection for rehabilitative purposes.

The court recognised that, given the accessibility of a newspaper archive online and online records of social media, there was a far greater risk that material would be available now, whereas, in previous generations, it would have passed into history. Despite that risk, the court seemed to consider that the principle remained unchanged, even if it might be possible to search earlier anonymous reports of cases and to identify the young persons who have now achieved majority. The question was whether or not Parliament had intended to protect adults from possible publication of their criminal conduct when under 18. In that regard, the judge noted the views of Rose LJ in R (ex parte W, B and C) v Central Criminal Court,² in whose view there was no point preserving the anonymity of a defendant pending appeal when he was to turn 18 only a week later. Those views were reflected, and sometimes adopted, in other decisions, so reflecting the law over many decades. The judge therefore had no doubt that Rose LJ’s views “could not possibly be said to be wrong and are rightly to be followed”.

Nor did the judge consider that Articles 8 and 10 of the European Convention on Human Rights (ECHR) affected a purposive interpretation of section 39. He noted that the reporting restriction in youth courts under section 49 of the 1933 Act was automatic. The balancing of Articles 8 and 10 was therefore effected by the terms of the statute. By contrast, section 39 did not mandate any such order, but allowed discretion to the judge, i.e. it was the judge who should balance Articles 8 and 10 at and immediately after the trial. Accordingly, there was no reason to “read down” the words of section 39 using the court’s power under section 3 of the Human Rights Act 1998, and there was no incompatibility of the legislation with human rights.

The judge did not, however, consider the state of affairs to be satisfactory, given that section 39 applies to victims, witnesses and others concerned in criminal proceedings, quite apart from the position of defendants. He contended that there was simply no reason why, at the very least, they should not have similar potential protection to that afforded to adults under section 46 of the 1999 Act, who, in those circumstances, could enjoy lifelong anonymity. Further, the position would be no better if section 45 of the 1999 Act were brought into force, since it was beyond argument that the protection only extended to those under the age of 18 and not beyond. So, not only would it not cover the post-18 position of those who, as adults, would have been entitled to an order under section 46, but also it did not extend protection beyond contemporaneous reporting of proceedings by newspapers or broadcasters.

The judge also rejected the argument that the problem could be solved by a broad construction of section 39 to mean lifelong protection (subject to an application to discharge). In his view, there were too many public policy issues involved. In particular, there was no reason that necessarily required child victims, witnesses, those concerned in proceedings and defendants to be treated in the same way, as they have different needs. The statutory scheme for the protection of children and young persons contained within section 39 simply did not seek to address the different issues that arise.

Finally, the judge commented that victims and witnesses need individual and tailor-made protection within the criminal justice system. It would be wrong to seek to create a solution out of legislation that was simply not designed to have regard to what is now understood of their needs, and to the primacy attached to their legitimate interests. So it was for Parliament to fashion a solution, and the problem should be “addressed as a matter of real urgency”.

Comment

The conclusion was simple: an order made by any court under section 39 could not extend to reports of the proceedings after the individual concerned has reached the age of 18.

The result – that section 39 orders come to an end once a beneficiary reaches their 18th birthday – will not come as a shock to anyone. But the judge’s call for parliamentary intervention over what he described as an “anomalous lacuna” in the legislation begs the question of if and how MPs respond, and when.

Gideon Benaim and Jon Oakley

Partner and Associate, Michael Simkins LLP

1. JC and RT v The Central Criminal Court [2014] EWHC 1041 (QB) (8 April 2014).
2. [2001] CR App R 2.