R v Robert Jolleys and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson |
| Judgment Date | 27 June 2013 |
| Neutral Citation | [2013] EWCA Crim 1135 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 June 2013 |
| Docket Number | No: 201300724 C1 |
[2013] EWCA Crim 1135
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Leveson
Mr Justice Irwin
Mr Justice Cranston
No: 201300724 C1
Mr M Dodd appeared in person on behalf of the Press Association
Mr S Heptonstall appeared on behalf of the Crown
This is an appeal by the Press Association, the national news agency for Great Britain and Ireland, pursuant to section 159 of the Criminal Justice Act 1988 in relation to an order made by Mr Recorder J.J. Wright on 16th January 2013, during the course of a criminal trial then being conducted in the Crown Court at Swindon. The order was later confirmed, after argument, on 25th January 2013. It is contended by the Press Association that the order was unjustified in law and, once more, demonstrates the lack of awareness both of the court's powers to restrict reporting of the proceedings and of the need to respect the limits which Parliament has prescribed.
The order, which purported to be made under section 39 of the Children and Young Persons Act 1933 ("the Act") directed that "in relation to these proceedings, no media report in any form shall reveal the name, address or school or include any particulars in any form as being or including a picture of [the minor child of the defendant] except as may be permitted by this court". Given that the name of the school which the boy (and his two older brothers) had attended was in the public domain (as, indeed, prior to the date of the order, had been the name of the minor son), he then clarified that there was "no order banning the publication of the name of the school to which these proceedings relate". He recognised that, by implication, the result was that the minor son could be identified.
The facts are easily summarised. Robert Jolleys is a former army officer who was then being tried for defrauding taxpayers by claiming more than £180,000 to send his three boys to an independent boarding school when his personal circumstances were such that he was not entitled to do so. He was eventually convicted of three counts of obtaining a money transfer by deception, three of fraud and one of forgery; he was acquitted of one further offence and the jury were discharged from returning verdicts on three others. His older sons were aged 22 and 20, but the youngest, then 15, was still at the school concerned.
During the early stages of the trial, the prosecution identified all three sons and the school which was the same in each case; these facts were reported. On 16th January, however, counsel for the Crown brought these reports to the attention of the Recorder and expressed concern that the youngest son came within section 39 of the Act and deserved the protection of the court. Nobody from the press was given the opportunity to make representations at that stage. Indeed, Mr Mike Dodd, the legal editor of the Press Association, informed the court that the reporter was specifically prevented from so doing. Having said that, the order was put into place until it would be "properly argued" by counsel and "by somebody from the press if need be".
It should be observed that, at this early stage, the Recorder ignored Rule 16 of the Criminal Procedure Rules. Rule 16.1 specifically identifies that the Rule applies where the court can impose a restriction on reporting what takes place at a public hearing. Rule 16.2 is in the clearest terms as follows:
"(1) When exercising a power to which this Part applies, as well as furthering the overriding objective … the court must have regard to the importance of -
(a) dealing with criminal cases in public; and
(b) allowing a public hearing to be reported to the public.
(2) The court may determine an application or appeal under this Part -
(a) at a hearing, in public or in private; or
(b) without a hearing.
(3) But the court must not exercise a power to which this Part applies unless each party and any other person affected -
(a) is present; or
(b) has had an opportunity -
(i) to attend, or
(ii) to make representations."
It cannot be suggested that the press were not affected by the order; indeed, it was specifically to restrict what could be reported that the order was made. This failure to allow representations at that stage represented a serious inroad into the respect owed to the press concerned to report criminal proceedings.
Following the evidence (but, we anticipate, prior to conviction), the Recorder revisited the order. Counsel for the defendant said that it would be impossible to say that the boy did not come within section 39 of the Act and was not "concerned in" the proceedings. In relation to Article 10 of the European Convention on Human Rights, although counsel recognised that the order had to be necessary, proportionate and in accordance with a pressing social need, he spoke about the pressure on the boy and the risk (depending on the verdicts) that it would or could be said of him that his father had been convicted of fraud for the purposes of funding his education.
It was recognised that there had been some reporting but asserted that it had not been extensive and, in the event of conviction, the case would attract considerable press interest, not least because of the issue of a military education allowance. Counsel recognised that the reporting would be in good faith but said that it would result in "very considerable unhappiness" for the youngest son.
A reporter from the Press Association was then given the opportunity to make representations and argued that the youngest son was not "concerned in proceedings" as he was not "the person by or against, or in respect of whom the proceedings are taken" or a witness. He referred to the guidance on Reporting Restrictions in the Criminal Courts published by what was then the Judicial Studies Board, now the Judicial College, to the effect that the child or young person must be alive and will be concerned in criminal proceedings if he is a victim, defendant or witness in the case. The Recorder rejected the argument that he did not have the power, having observed that if he did not make the order, life for the boy at school would be a bit of a misery.
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