R A v Lowestoft Magistrates' Court Crown Prosecution Service and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker,Lord Justice Pitchford |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] EWHC 659 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4788/2012 |
| Date | 26 March 2013 |
[2013] EWHC 659 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pitchford
Mr Justice Kenneth Parker
Case No: CO/4788/2012
Paramjit Ahluwalia (instructed by Christian Khan Solicitors) for the Claimant
Benjamin Douglas-Jones (instructed by Crown Prosecution Service, Appeals Unit) for the First Interested Party
Kate Wilson (instructed by Foot Anstey LLP) for the Second Interested Party
Hearing dates: 14 March 2013
Introduction
On 1 May 2012 in the Lowestoft Magistrates' Court the Claimant (to whom I shall refer as A) pleaded guilty to a charge of being drunk in a public place, while having the charge of a child under the age of 7 years, contrary to section 2(1) of the Licensing Act 1902. The child in question was A's daughter, to whom I shall refer as B. B was 2 1/2 years old. A is an elected councillor and is likely to be well known in the local community.
The facts giving rise to the charge were that at about 2.45pm on 10 April 2012 the manager of an ASDA store was concerned about the condition of A within the store and called the police. A police officer arrived and believed that A was drunk. He gave her a screening breath test which registered 142µg alcohol/100 ml breath, more than four times the legal limit for driving a motor vehicle. A was arrested and B was transferred to the temporary care of family members. On 20 August 2011 A had previously received a caution for a similar offence. At the hearing on 1 May 2012 for the present offence the Magistrates imposed a fine of £100 and ordered a victim surcharge of £15.
What happened immediately after A had been sentenced on 1 May 2012 is set out in the summary grounds of defence of the Magistrates' Court (the First Defendant in this claim), which were prepared on its behalf by the legal adviser who had been present in court during the proceedings against A. Miss Mir, the advocate then appearing on behalf of A, applied for an order under section 39 of the Children and Young Persons Act 1933 ("the CYP Act"). Miss Mir submitted that A should not be identified because of her health. The legal adviser continues in the summary grounds as follows:
"No evidence was provided by [A] relating to how her daughter would be affected by [A's] name being released to the press other than the fact that the daughter ought to be protected from the serious press release on this matter. No case law was presented before the court in support of [A's] application and no reference was made to any breach of [A's] Human Rights."
The legal adviser continues by stating that he advised the magistrates that —
"You do not need to consider the impact on the defendant for a section 39 order. You only need to consider the impact on the child, and she is only 2 1/2 years of age."
Miss Mir did not challenge the advice or seek to be heard further. The prosecutor made no representations and no member of the press was present. No explicit reference was made to the Judicial Studies Board Guide "Reporting Restrictions in the Criminal Courts" (October 2009), which, at section 4.2, sets out a valuable summary of the principles governing the exercise of discretion under Section 39. The magistrates retired to consider their decision. They returned a few minutes later, stating that, having considered the advice of the legal adviser, they refused the application for reporting conditions. According to an attendance note prepared by Miss Mir and put in evidence in this claim, she indicated to the magistrates that A would appeal the decision to refuse an order under section 39. Miss Mir also says in her note that sometime after the court had risen she sought to have the court reconvene in order that she might seek to ascertain further reasons for the decision. However, the court had by then concluded business for the day and the magistrates had left the court building.
The Claim
The thrust of this claim is that the magistrates erred in law in refusing to make an order under section 39 of the CYP Act. They had no reasonable basis, it is contended, for refusing the order; and their reasons for refusal were in any event inadequate. The relief sought in the claim form is a permanent injunction from this Court, the effect of which would be to prohibit the publication of the name of A in any report of the criminal proceedings which I have just described. I shall leave the question of relief until I have dealt with the substantive issues raised by the claim.
It is convenient at this point to set out section 39 of the CYP Act 1933:
" 39 Power to prohibit publication of certain matter in newspapers.
(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. "
The Issues
The claim raises the following issues:
i) For the purposes of section 39 of the CYP Act, was B a child "concerned" in the relevant criminal proceedings against A, on the footing that she was a child "in respect of whom" the relevant proceedings were taken?
ii) If B was a child "concerned" in the proceedings, what were the relevant considerations that the magistrates had to take into account in deciding whether to make an order under section 39, and in deciding what precise restrictions, if any, should be imposed?
iii) On the material before them and in the light of relevant considerations, did the magistrates in this case reach a decision which was reasonably open to them and/or did the magistrates in any event reach the correct decision?
The First Issue: Did the proceedings "concern" B?
Section 39 is of course a general provision. It applies to any proceedings in any court. It is not limited to criminal proceedings. It must, therefore, be correspondingly broad in scope to cover all contingencies. In the context of civil proceedings it will ordinarily be straightforward to determine whether a child or young person is bringing the proceedings, or has the proceedings brought "against" him or her, or whether the child or young person is in substance the subject of civil proceedings brought by others. In a strictly formal sense, it might be argued that the only two parties to criminal proceedings are the prosecution and the defendant, and that criminal proceedings are not taken "in respect of" any other person. However, it is plain that the legislature in enacting section 39 sought to capture, in wide language, at least the central participants in proceedings, whether civil or criminal, who would for that very reason be likely to be the focus of any report of the proceedings; and a narrow interpretation of section 39 would tend to defeat the main objective of protecting, where appropriate, the identity of a child or young person in that position. It is notable that section 39 extends in terms to a child or young person as a witness in proceedings, even if in a particular case the child or young person may have a relatively insignificant part in the proceedings. A broad interpretation of section 39 would now also be supported by article 8 of the European Convention of Human Rights ("ECHR") and the jurisprudence emphasising the best interests of children as a primary consideration, to which I shall turn later. Where in any event someone is prosecuted on a charge of violently or sexually assaulting a child or young person, or of inflicting cruelty on a child, it has never been seriously doubted that the putative victim of such conduct is a person "in respect of whom" the criminal proceedings are brought.
A here stood charged with "being drunk in a public place while having the charge of a child under the age of 7 years", contrary to section 2(1) of the Licensing Act 1902. Under section 2(1) it is unnecessary to show that the defendant positively inflicted physical or psychological harm on the young child, or even that the defendant in the particular circumstances was likely to do so. In that strict sense the child might not be considered a victim as in the case of a violent or sexual assault, or of child cruelty. However, whatever the original intent of section 2(1), I am prepared to give it an interpretation that would best promote public policy in modern conditions, namely, that it is intended, among other things, to promote the welfare of small children who could be at risk of physical or psychological harm, because the person responsible for that welfare is intoxicated. Accordingly, the child that is specifically referred to in any charge under section 2(1) is in a real sense a subject of the criminal proceedings, and these proceedings on any sensible construction of section 39 of the CYP Act 1933 are taken "in respect...
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