Brian Aitken v DPP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby,Mr Justice William Davis,Lord Justice Bean |
| Judgment Date | 23 April 2015 |
| Neutral Citation | [2015] EWHC 1079 (Admin) |
| Docket Number | Case No: CO/461/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 April 2015 |
[2015] EWHC 1079 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Mr Justice William Davis
Mr Justice Warby
Case No: CO/461/2015
Alex Bailin QC and Edward Craven (instructed by Bindmans LLP) for the Appellant
Steven Kovats QC (instructed by CPS Appeals Unit) for the Respondent
Hearing dates: 31 March 2015
Introduction
Is a newspaper editor a person who publishes the contents of the newspaper? Most media law specialists would be likely to respond to the question with puzzlement. In civil claims for libel or misuse of private information editors are often sued as publishers of articles that are complained of. The law attributes responsibility for what is published to a wide variety of those involved in the process, and editors are usually involved enough for responsibility to attach. In this appeal by case stated, however, the question arises in the context of a criminal charge of contravening a reporting restriction imposed under s 39 of the Children & Young Persons Act 1933. The issue is whether Parliament intended when enacting s 39 that a newspaper editor should be exposed to criminal liability under the section.
The appellant is the editor of a regional paper published in the Northumberland area, called The Journal, which published a court report in breach of a reporting restriction order imposed under s 39 of the 1933 Act. The publishing company and the editor were both prosecuted. The company pleaded guilty but the appellant contested the charge. When the matter came before the District Judge in Newcastle-upon-Tyne Magistrates' Court the appellant submitted that he had no case to answer because there is no power to prosecute a newspaper editor for the offence created by s 39. The Judge rejected that submission. The appellant changed his plea to guilty and was fined. He now submits that the District Judge's ruling was wrong.
This contained two provisions affecting newspaper reporting relating to children involved in criminal proceedings: ss 39 and 49. Their common origin was s 81 of the Children and Young Persons Act 1932. Counsel's researches suggest, however, that s 81 was never brought into force, but superseded by the provisions of the 1933 Act.
As originally enacted, s 39 was in these terms:-
" Power to prohibit publication of certain matters in newspapers.
(1) In relation to any proceedings in any court, which arise out of any offence against, or any conduct contrary to, decency or morality, the court may direct that—
(a) no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person in respect of whom the proceedings are taken, or as being a witness therein;
(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except in so far (if at all) as may be permitted by the direction of the court.
(2) Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine not exceeding fifty pounds."
The limiting words I have italicised in subsection (1) were repealed by the Children and Young Persons Act 1963, thus bringing criminal and civil proceedings of any kind within the scope of the section. The 1963 Act also enlarged the categories of children and young persons whose interests could be protected by a s 39 order. It did so by inserting words in subsection (1)(a) so that it referred to children and young persons " by or against or in respect of whom" proceedings were taken, as well as witnesses. The 1963 Act made a third change: by s 57(4) it provided that s 39 should apply to sound and television broadcasts as well as newspapers. Later, the scope of the section was expanded to cover cable TV. The Criminal Justice Act 1982 changed the maximum penalty to a fine "not exceeding level 5 on the standard scale" which is currently £5,000.
Section 39(1) as it stood at the material time therefore provided all courts in all proceedings, criminal and civil, with a discretionary power to prohibit the inclusion, in reports of the proceedings in newspapers or in sound or television broadcasts or cable programmes, of the specified kinds of information about, or pictures of, any child or young person by or against or in respect of whom the proceedings were taken, or who was a witness in the proceedings. Section 39(2) created an offence of publishing "any matter in contravention of a direction under this section", which could be committed by "any person who publishes" such matter. The offence was one of strict liability, with a maximum penalty of a fine of £5,000.
Section 49 of the 1933 Act is concerned with youth justice. As enacted, it was headed "Restrictions on newspaper reports of proceedings in juvenile courts". It contained an automatic prohibition on the inclusion in newspaper reports of any proceedings in such a court of identifying details or pictures of children and young persons involved in such proceedings. The prohibited matters were substantially identical to those set out in s 39(1)(a) and (b) of the Act. Provision was made, however, for a court or the Secretary of State to make an order dispensing with the requirements of subsection (1), to the extent specified in the order, "if satisfied that it is in the interests of justice to do so". Section 49(2) was in terms similar to those of s 39(2). It provided that "Any person who publishes any matter in contravention of this section shall on summary conviction be liable in respect of each offence to a fine not exceeding fifty pounds."
Section 49 has been much amended over the years. The current version is the tenth. Some of the amendments have been relatively minor, reflecting changes in nomenclature, in the delivery of youth justice, and in the system of fines. Thus, the term "youth court" is now substituted for "juvenile court", appellate proceedings are included, and the maximum penalty is now a fine on level 5. Two main sets of amendments of substance had been made by the time of the events in issue here. The first was the extension of the section to cover sound and television broadcasts and then cable, in the same way as s 39. The second major change came when s 49 of the Criminal Justice and Public Order Act 1994 inserted an entirely new s 49 into the 1933 Act. I shall return to this, because the appellant relies on the changes made to s 49 in 1994 in support of his arguments about the scope of s 39, which was not amended at that time.
In 1999 Parliament passed legislation amending both s 39 and s 4It did so as part of a package of amendments to the reporting restriction regime contained in the Youth Justice and Criminal Evidence Act ( YJCEA). Those amendments remained dormant for many years, and were not in force at the material time. Indeed, it is only this year that the regime as amended by the YJCEA has been brought into force, in a further amended form, as part of a wider programme of reform of reporting restrictions in this area. But I mention the 1999 amendments because the appellant relies on them in support of his arguments as to the construction of s 39, as I shall explain. I shall also have some observations to make on the current state of the law at the end of this judgment.
The facts
On 30 April 2013 Tracey Graham, a teaching assistant, appeared at South- East Northumberland Magistrates' Court, charged with offences of meeting a child following sexual grooming contrary to s 15(1) of the Sexual Offences Act 2003, sexual activity with a child contrary to s 9(1) of that Act, and putting a person in fear of violence by harassment contrary to s 4(1) of the Protection from Harassment Act 1997. The child concerned was a pupil at the school where Ms Graham worked. These being adult criminal proceedings the automatic restrictions under s 49 of the 1933 Act did not apply. The magistrates made a s 39 order in these terms:
"Direction made under section 39 of the Children and Young Persons Act 1933 restricting publicity in respect of the youth victim in this case. This includes publication of the youth's name, address, school or anything else that may identify them, including a picture. This order lasts until further order. "
On 2 May 2013 The Journal published an article naming the school, in contravention of the magistrates' order. Another local paper, The Chronicle, published a similar article, also in breach of the order.
The Journal and The Chronicle are both published by the same company, NCJ Media Ltd, a subsidiary of Trinity Mirror plc. NCJ Media was charged with and pleaded guilty to two offences under s 39. It was in due course fined £2,160 on each charge and ordered to pay £5,000 towards the prosecution costs. The appellant, and the editor of The Chronicle, Mr Thwaites, were also charged. However, the CPS discontinued the prosecution of Mr Thwaites before trial on public interest grounds. It seems that he had been at a meeting in London at the time of publication. The journalist who wrote both articles and who had been in court when the order was made was not charged.
Having pleaded not guilty the appellant raised two points, which were argued before District Judge Earl on 24 September 2014, and ruled...
To continue reading
Request your trial
-
Anthony Dixon v North Bristol NHS Trust
...with the communication of information, sometimes known as ‘publication torts’, and the related law (see the discussion in Aitken v DPP [2016] 1 WLR 297 [41]–[62]). Parliament must be taken to have legislated against this well-established background. Section 12(3) applies to any application......
-
Birmingham City Council v Mr Shakeel Afsar
...the communication of information, sometimes known as “publication torts”, and the related law (see the discussion in Aitken v DPP [2015] EWHC 1079 (Admin) [2016] 1 WLR 297 [41–62]). Parliament must be taken to have legislated against this well-established background. Section 12(3) applies......
-
Shell UK v Persons Unknown
...the communication of information, sometimes known as “publication torts”, and the related law (see the discussion in Aitken v DPP [2015] EWHC 1079 (Admin) [2016] 1 WLR 297 [41–62]). Parliament must be taken to have legislated against this well-established background. Section 12(3) applies......