R v Manchester Crown Court, ex parte H. (A Minor)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE FORBES |
| Judgment Date | 30 July 1999 |
| Judgment citation (vLex) | [1999] EWHC J0730-3 |
| Docket Number | CO 3047/99 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 1999 |
[1999] EWHC J0730-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Lord Justice Rose and
Mr Justice Forbes
CO 3047/99
MISS V BAIRD and MR H SOUTHEY (instructed by H Kristina Harrison, Salford, M3 5JQ) appeared on behalf of the Applicant H.
MISS V BAIRD and MR H SOUTHEY (instructed by Betesh, Fox & Co Solicitors, Manchester M3 5FT) appeared on behalf of the Applicant D.
MR D SMITH (instructed by the Treasury Solicitor) appeared on behalf of Manchester Crown Court.
MISS LJ JUDGE (instructed by the CPS, Manchester) appeared on behalf of the Crown Prosecution Service.
(As Approved)
The applicants are two 15 year old females. Following a trial of substantial length at Manchester Crown Court, before Sachs J, they were convicted on Tuesday this week, 27th July, of murder. The victim was an elderly woman. The case has understandably attracted very considerable attention from the media.
At a plea and directions hearing prior to the trial, an order had been made under section 39(1) of the Children and Young Persons Act 1933, prohibiting the publication of material calculated to lead to the identification of the Applicants. That order was renewed by Sachs J at the beginning of the trial.
On Wednesday this week, 28th July, following representations to the trial judge by representatives of the press and submissions by counsel for the prosecution and the applicants, the judge discharged that order, but stayed the discharge until 4.30 p.m. today.
Yesterday, Keene J granted the applicant H permission to challenge that decision by way of judicial review. At the outset of today's hearing, this Court granted the applicant D like permission. It is apparent that this matter requires more urgent resolution than is sometimes necessary.
The relevant statutory provisions are as follows. By virtue of the Supreme Court Act 1981, section 29(3) provides:
"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."
Section 39 of the 1933 Act (to which I have referred) provides in subsection (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… except in so far (if at all) as may be permitted by the direction of the court."
Section 44 of the 1933 Act imposes a duty on all courts to have regard to the welfare of a child or young person.
Section 11 of the Contempt of Court Act 1981 is in these terms:
"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it is so withheld."
On behalf of both applicants, Miss Baird, who represented the applicant H at trial, submits that there is jurisdiction in this Court to entertain applications for judicial review in relation to orders made under section 39. The only Court of Appeal decision on the subject is Lee 96 Cr.App.R 188 which held that there was such jurisdiction.
Miss Baird referred to a decision of the Divisional Court (differently constituted) in R -v- Harrow Crown Court ex parte Perkins and R -v- Cardiff County Court ex parte M (which I shall refer to as ex parte M) (unreported) Divisional Court transcript dated 30th March 1998.
In the course of giving the first judgment (with which I expressed agreement) Sullivan J, starting at page 22G of the transcript (in a passage which it is necessary to read in full terminating at 24E) said this, by reference to the facts in that case:
"But if the Crown Court had jurisdiction to make a direction on 7th July, because it was 'in relation to' the proceedings which had concluded on 4th July, does that mean by the same token that this court has no jurisdiction to consider an application for judicial review because the Crown Court in making a direction will be exercising its jurisdiction in a matter relating to trial on indictment?
In my view, such a conclusion does not follow. Whilst section 39 is a power of very general application, conferred in the interests of children and young persons on any court and in relation to any proceedings, the words 'relating to trial on indictment' in section 29(3) should not be given an extended meaning: See the speech of Lord Bridge at page 643 in Smalley which I have already read.
….
Considering the first of Lord Bridge's 'pointers', a decision to make a direction under section 39 after the conclusion of a trial will have no possible effect upon the conduct of that trial. Nor, in my view, can it be said to be an 'integral part of the trial process', in the same way that verdict, sentence and costs are regarded as part of the trial process: See Lord Bridge's speech at page 196 in Sampson which I have read.
True it is that the judge will use the information gleaned in the trial to help him to decide whether to make a direction under section 39 if it is made at a later stage. But the power to make a direction, whilst it must be related to proceedings in a court, is a separate child protection power, which is distinct from those proceedings. It is, in my view, fairly described as collateral to those proceedings [I interpose that I shall comment later on the use of that word 'proceedings' in that context rather than 'trial']… see the guidance in Smalley and Sampson which was endorsed In re Ashton.
Moving on to the 'further pointer' suggested by Lord Browne-Wilkinson at page 1530 in R -v- Manchester Crown Court ex parte DPP, 'Is the decision to make a direction under section 39 one which arises in the issue between the Crown and the Defendant formulated by the indictment (including the costs of that issue)?'
In my view, the answer to that is plainly 'no'. It is a separate collateral issue which is concerned with the welfare of any party or witness who happens to be a young person."
Miss Baird submits that, with one exception (to which in a moment I shall come), the other Divisional Court authorities, of which there are a number, have, as she put it, "taken jurisdiction as read".
By way of example, she refers to R -v- Leicester Crown Court ex parte S (1992) 2 All ER 659 and R -v- Central Criminal Court ex parte S and P 16th October 1998 (1999) Crim LR 159.
The exception to that line of authority is R -v- Winchester Crown Court ex parte B (which I shall refer to as ex parte B) [1999] 1 WLR 788. The leading judgment in that case, with which Astill J agreed, was given by Simon Brown LJ.
At page 792, Simon Brown LJ referred to Lord Diplock's speech in Attorney-General -v- Leveller Magazine Limited (1979) A.C. 440 at 449. Lord Diplock said this:
"As a general rule the English system of administering justice does require that it be done in public: Scott -v- Scott… If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principal requires that nothing should be done to discourage this.
However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule."
Miss Baird submits that, although publicity is integral to the administration of justice, regard also has to be paid (as one of the exceptions contemplated by Lord Diplock) to the considerations contained in sections 39 and 44 of the Children and Young Persons Act 1933.
She point out, as Simon Brown LJ himself recognised, that if there is no jurisdiction to entertain an application by way of judicial review in relation to a section 39 order, there is no means at all of challenging that decision.
Next, Miss Baird referred to R -v- Central Criminal Court ex parte Crook TLR 8th November 1984. It is to the judgment of Stephen Brown LJ in that case, that Simon Brown LJ had particular regard in ex parte B. Ex parte Crook related to an order made under section 11 of the Contempt of Court Act 1981. Stephen Brown LJ, giving the first judgment of the Divisional Court, said this:
"…the judge's order… was made in relation to a trial on indictment… [the judge] made his order intending...
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