R JC and RT v The Central Criminal Court and Another British Broadcasting Corporation (Interested Party) Just for Kids (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lady Justice King,Lord Justice Moore-Bick |
| Judgment Date | 20 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1777 |
| Docket Number | C1/2014/1375 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2014 |
[2014] EWCA Civ 1777
Lord Justice Moore-Bick
Lord Justice Laws
Lady Justice King
C1/2014/1375
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT
(LORD JUSTICE LEVESON, MR JUSTICE HOLROYDE
AND MR JUSTICE CRANSTON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr J Bennathan QC and Ms M Roche (instructed by Straw & Pearce) appeared on behalf of the Appellants
Mr M Hill QC (instructed by the Crown Prosecution Service) appeared on behalf of the Respondents
Mr G Millar (instructed by the BBC Litigation Department) appeared on behalf of the Interested Party
Mr Ian Wise QC (instructed by Just for Kids Law) appeared on behalf of the Intervener
(As approved)
Does an order made under section 39 of the Children and Young Persons Act 1933 prohibiting the identification of a party, witness or victim being a "child or young person concerned in the proceedings" expire when the young person turns 18? If the answer was Yes when the provision was enacted 81 years ago, is it so today in light of the United Kingdom's human rights obligations, especially with regard to children?
The Divisional Court (Sir Brian Leveson, President; Cranston J and Holroyde J) held that such an order did expire upon the young person's reaching 18 and that had always been the effect of the section: [2014] 2 Cr App R 13; [2014] EWHC 1041 (Admin). The appellants, who were as I shall show defendants in criminal proceedings at the Central Criminal Court, appeal against that decision with permission to appeal granted by this court upon a renewed application on 5 June 2014.
Section 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."
The term 'young person' is someone who has attained the age of 14 but not 18 (section 107 of the 1933 Act).
The facts are described in the President's judgment in the court below as follows:
"2. 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.
3. 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.
4. 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 birthdays.
5. 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 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."
JC's 18th birthday was 17 February 2014. RT's 18th birthday was 30 January 2014. By the time the third defendant Michael Piggin was retried those dates had passed. JC and RT had received community sentences on 12 December 2013 for the offences to which they had pleaded guilty. Their involvement with Piggin was relevant to issues in the latter's trial.
The proceedings in the Divisional Court were by way of judicial review brought with permission granted by Goldring LJ and Ouseley J on 25 February 2014. The relief sought was, and is, a declaration that the Recorder's order in November 2013 granting anonymity to JC and RT is of indefinite effect and that his later ruling that in law the section 39 order would expire on the appellants' respective 18th birthdays should be quashed.
The Central Criminal Court is the nominal defendant but has taken no part. Substantive responses were advanced by the BBC and the Crown Prosecution Service as interested parties, and the charity Just for Kids Law as Intervener with the permission of the court. Just for Kids Law provides representation, support and advocacy to children and young people in difficulty, including young people involved in the criminal justice system. The BBC, the CPS and the Intervener have all appeared before us today by leading counsel, as of course has the appellant.
There is no binding authority as to the temporal reach of an order made under section 39. There are a number of obiter observations, to which I will turn shortly. It is convenient first to refer to certain other statutory provisions which have played some part of the argument.
Section 49 of the 1933 Act applies, primarily at least, to proceedings in the Youth Court (see section 49(2)). Section 49(1) provides:
"The following prohibitions apply … in relation to any proceedings to which this section applies, that is to say—
(a) no report shall be published which reveals the name, address or school of any child or young person concerned in the proceedings or includes any particulars likely to lead to the identification of any child or young person concerned in the proceedings; and
(b) no picture shall be published or included in a programme service as being or including a picture of any child or young person concerned in the proceedings."
Section 46 of the Youth Justice and Criminal Evidence Act 1999 ("the 1999 Act") provides, as the Divisional Court noted at paragraph 11 of the President's judgment, for an application to the court to be made for 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 in section 46(3). Section 46(6) provides:
"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 publication if it is likely to lead members of the public to identify him as being a witness in the proceedings."
Restrictions ordered under section 46 may include the witness's name, address and some other matters (section 46(7)) subject to certain qualifications (for which see section 46(9) and (10)). A direction lasts for life but does not assist anyone under the age of 18.
A bizarre feature of this case relates to section 45 of the 1999 Act, which although the Act is 15 years old has never been brought into force. S.45 is, or was, intended to replace section 9 of the 1933 Act but only as regards its impact on criminal proceedings (see Schedule 2, paragraph 2 to that Act). Section 45, though not in force, 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."
The state of affairs is bizarre not only because section 45 has not been brought into force but because of the contrast between sections 46 and 45. S.46 enables protection to be given to adult witnesses; section 45 would enable protection to be given to child defendants but only while they are children or young persons.
Now I...
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