JC and RT v The Central Criminal Court Crown Prosecution Service and Another (Interested Parties) Just for Kids Law (Intervener)
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Mr Justice Cranston,Mr Justice Holroyde |
| Judgment Date | 08 April 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/642/2014 |
| Date | 08 April 2014 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Cranston
Mr Justice Holroyde
Case No: CO/642/2014
and
and
Mr Joel Bennathan Q.C. (instructed by Straw & Pearce, Loughborough) for the Claimants
The Defendant did not appear and was not represented
Mr Max Hill Q.C. (instructed by the Crown Prosecution Service, London) for the First Interested Party
Mr Gavin Millar Q.C. (instructed by the BBC Litigation Department) for the Second Interested Party
Mr Ian Wise Q.C. and Ms Maria Roche (instructed by Just for Kids Law) for the Intervener
This case raises the question whether an order made under s. 39 of the Children and Young Persons Act 1933 (“the 1933 Act”) prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age of 18 years. It has wide implications not only for young defendants but also for victims, witnesses, others concerned in proceedings and, of course, the media.
The background can be shortly summarised. On 15 November 2013, the claimants JC and RT, then 17 years of age, appeared at the Central Criminal Court and each pleaded guilty to an offence in early 2012 of joint possession, without lawful reason of an explosive substance contrary to s. 4(1) of the Explosive Substances Act 1883. In the case of JC, the substance was parts for pipe bombs and for RT it was petrol bombs. In both cases, the Crown accepted that they obtained this 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 in respect of which he was tried. All three had the benefit of an order under s. 39 of the 1933 Act restricting any newspaper or broadcast media outlet from reporting the name, address, school or other identifying particulars that might identify them: this order had been made by the Recorder of London at an earlier hearing.
After the pleas of JC and RT had been accepted, the Recorder heard argument as to whether the s. 39 order should continue. He considered that the seriousness of the additional charges against the third defendant meant that he could be named after verdicts of the jury but that the order in relation to the two who had pleaded guilty should continue. He commented that the order in respect of each young man would automatically expire when he became 18.
The trial then proceeded against the third defendant alone but the jury could not agree on verdicts and a retrial was ordered. In that event, and having regard to all the circumstances, the Recorder proceeded to sentence JC and RT and, in each case, imposed a community penalty. At the same time, he heard argument as to the effect of the s. 39 order whereupon he held that, as a matter of law and without reconsideration of the facts, the section properly construed provided that the November order would indeed expire on their respective 18 th birthdays.
By the time of the retrial, all three defendants had, in fact, attained that age. The third defendant, then facing his re-trial, has been named as Michael Piggin: he is over 18 and a defendant in a criminal trial and there was no basis upon 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 seek to argue that they remain entitled to the protection of the 1933 Act. They thus seek judicial review of the decision of the Recorder that the order expired on their 18 th birthdays. On 25 February 2014, permission was granted by Goldring LJ and Ouseley J who gave directions which included reporting restrictions on the claimants' identities pending the hearing of the claim. JC and RT are supported by a charity, Just for Kids Law, who have been given leave to intervene. The BBC (supported by other media organisations, in particular, the press) oppose the application. Although initially neutral, the Crown Prosecution Service (“CPS”) has become concerned about the impact of the Recorder's decision on victims and witnesses: their submissions, therefore, pointed to the difficulties of the ruling.
The Law
The background to the 1933 Act is to be found in the Report of the Departmental Committee on the Treatment of Young Offenders (1927), which explained:
“The Children Act [1908] (section 111(4)) provides that in a juvenile court no person other than the members and officers of the court and the parties to the case, their solicitors and counsel, and other persons directly concerned in the case shall, except by leave of the court, be allowed to attend. Members of the public are excluded and the only exception is made on behalf of bona fide representatives of a newspaper or news agency. It was suggested to us by several witnesses that future legislation should provide for the exclusion of the press, but we are not satisfied that this right should be taken away so long as it is not abused. It is obviously undesirable that names and addresses of the children or any other matter should be published that can lead to their identification. In most cases members of the press readily respond to all requests made by the court not to publish this information, but exceptions have been brought to our notice in which such information is still published in spite of requests made by the court. If therefore the exception made in respect of the press is retained, as we think it may well be, the publication of the name, address, school, photograph, or anything likely to lead to identification of the young offender should be prohibited.”
Although the Report clearly considered the position of the defendant to proceedings, the reach of the 1933 Act is wider. Covering all those under 18 (see the definition of ‘child’ and ‘young person’ in s. 107), s. 39 provides:
“(1) In relation to any proceedings in any court, 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 by or against or 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 level 5 on the standard scale.
Thus, an order under s.39 order protects any child or young person “concerned in the proceedings”: this will include three distinct groups, that is to say, a defendant, a witness, and/or a victim (who may not be a witness, as in the case of a very young child). These different groups or classes may well have different interests and, in particular, there may well be different justifications and arguments that can be advanced in relation to each. For the sake of completeness, it is important to add that s. 57(4) of the Children & Young Persons Act 1963 extends the coverage beyond newspapers to sound and television broadcasts but does not deal with publications in general or comment other than that which constitutes “reports of proceedings”. However, the Contempt of Court Act 1981, which focuses on a protection of the court process rather than the long term interests of individuals participating in the process, extends to all publications.
In addition, there are automatic restrictions similar to those contained within s. 39(1) of the 1933 Act in relation to all proceedings in the youth courts or an appeal from the youth court: see s. 49(1) as substituted and amended. Other provisions apply in certain circumstances: s. 1(1) of the Sexual Offences (Amendment) Act 1992 provides anonymity from publication to the victims of sexual crime “during that person's lifetime”. Children involved in family proceedings are also protected, without any time limit, by a prohibition of publication to the public or any section of the public: s. 97 of the Children Act 1989.
Further, it is also necessary to consider the provisions of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) which deals both with children and young persons. Section 46 of the 1999 Act 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. Eligibility for protection is defined by s. 46(3) and relates to the likelihood of the quality of the evidence or level of cooperation being diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness. The protection, however, is identified in the same section in these terms:
“(6) For the purposes of this section a reporting direction in relation to a witness is a direction that no matter relating to the witness shall during the witness's lifetime be included in any...
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