JC & RT, R (On the Application Of) v The Central Criminal Court & Ors

LORD JUSTICE LAWS: 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:

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:

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:

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:

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:

Now I will come to the cases in which the courts have passed upon the temporal reach of section 39. The first in time is R v Central Criminal Court ex p W, B and C [2001] Cr App R 2. The Divisional Court had to decide whether to maintain in being a section 39 order relating to three young men after their conviction for murder. They were still under 18 at the time of the court's decision. As necessary the court would have sat as the Court of Appeal Criminal Division. The case is material only for an observation made by Rose LJ, with whom Rafferty J (as she then was) agreed. Rose LJ said this at paragraph 38:

I refer next to Venables v News Group Newspapers Ltd [2001] Fam 430, in which Dame Elizabeth Butler-Sloss (as she then was), President of the Family Division, proceeded on the basis that the section 39 order would expire on its subject's 18th birthday (see paragraph 28 of the judgment). The point was agreed to by all counsel and was not argued. In fact the order in that case was made by the President under the High Court's inherent jurisdiction and the reference to section 39 was again obiter.

T v Director of Public Prosecutions & North East Press Ltd [2003] EWHC (Admin) 2408 was concerned with the question whether an order made under section 49 of the 1939 Act, which I have cited, ceased to apply to a defendant who attained the age of 18 during the course of proceedings against him in the Youth Court. The Divisional Court (Brooke LJ and Sullivan J, as he then was) held that it did. Sullivan J, with whom Brooke LJ agreed, said this at paragraph 35:

Next I will refer to Clayton v Clayton [2006] Fam 83, which was concerned with section 97 of the Children Act 1989. Sir Mark Potter, President, said at paragraph 60:

I now call attention to an important observation of Lord Steyn in Re S [2005] 1 AC 593, a case to which I will refer further. Section 39 did not directly arise there; the case involved the powers of the court to make reporting restrictions in favour of a child not strictly concerned in the proceedings. However Lord Steyn noted that section 45 of the 1999 Act, to which I have referred, was intended to replace section 39 and said this at 605B:

The appellants contend, by Mr Bennathan, that a section 39 order once made may continue in effect indefinitely unless it is revoked. They deploy arguments based on the language of the section, its purpose, analogies in other materials, international treaty obligations owed by the United Kingdom, statutes and decisions in other common law jurisdictions, an increase in concern for the rights of young witnesses and victims, and tensions between Articles 8 and 10 of the European Convention.

All of these matters pay attention and deserve respect but their canvas is so broad that it is worth recording what is obvious: that we are not here to legislate but to construe section 39 of the 1933 Act. I acknowledge without cavil that the exercise of interpretation is seldom value free and is often creative; not least where important competing rights are involved. But the exercise nevertheless imposes a discipline on the court - a discipline fulfilled by giving first consideration to the language of the provision and to its perceived objective purpose, informed in this case by contrasting rights which our constitution acknowledges, rights principally articulated by Articles 8 and 10 of the ECHR. These considerations must be the primary drivers of the court's decision.

I turn to the language of the section. I repeat the operative words for convenience:

In my judgment the essence of the measure is the prohibition of the identification of a child or young person. The subject in the section 39 direction is specified as a child or young person, and accordingly once he or she is no longer a child or young person then in my view the direction is spent. The temporal reach of the direction is thus fixed by the description of its subject: a child or young person.

But, submits Mr Bennathan, if that is right then the direction's temporal reach is also fixed by the words which qualify "child or young person", namely "concerned in the proceedings"; and so on this basis the direction would expire either at the child's maturity or when the proceedings come to an end, whichever is the sooner. This is advanced by the appellants in effect as a reductio ad absurdum. It would mean, says Mr Bennathan, that a judge might make a section 39 order on a Friday to protect a vulnerable 14 year old defendant but if he were acquitted on the Monday following, the media could publish every detail on the Tuesday.

I do not accept this scenario. The adjectival phrase "concerned in the proceedings" does not in my view have effect to impose a temporal limit on the order; it merely serves to identify a characteristic of the child or young person in respect of whom the order may be made when it is made. He or she must be "concerned in the proceedings" but when the proceedings are over the direction enures until its subject reaches 18, unless of course it is revoked.

In dealing with the language of the section it is also to be remembered, and this has received some emphasis in the course of argument today, that subsection (2) created a criminal offence. That being so, the section is to be construed not necessarily restrictively but at least conservatively unless there is a pressing greater imperative. These conclusions on the language of section 39 are not called into question by the President's observations in Clayton or the decision of Tugendhat J in A (a child) v Cambridge University Hospital NHS Foundation Trust [2011] EMLR 18 to which Mr Bennathan referred this morning.

Mr Wise for the Intervener, though not Mr Bennathan, was as I understood him inclined to accept that a section 39 order upon his construction could be made after the close of proceedings, and at a time when the subject who had been a child concerned in the proceedings was an adult. I do not think that can possibly be right. Specific pointers against it include the reference in the section to the child's school and the use of the present tense in the phrase "in respect of whom the proceedings are taken": points to which my Lord the Vice President drew attention in the course of argument.

In those circumstances I turn to the section's purpose which in my judgment is consonant with the narrower construction of section 39 which I have outlined. Manifestly the purpose is to protect children and young persons from the deleterious effects of the publication of their involvement in proceedings. It is not to protect adults. That contrast is supported, quite apart from anything else, by the provision in section 44 of the 1933 Act requiring regard to be had to the welfare of the relevant child or young person.

But the appellant's whole case, supported by the Intervener, is in truth that an extended reading of the section is required in order to protect adults: adults who, when children or young persons, have been involved in proceedings in any of the capacities mentioned in the section. I do not for a moment suggest that such protection might not be desirable or necessary in some situations. Indeed I would respectfully endorse what was said by the President at paragraph 35 of his judgment in the court below:

All that said, I do not consider that section 39 can be construed so as to offer the kind of protection for adults that is in effect urged upon us. The notion that statute is always speaking does not produce such a result, nor in my judgment does Fitzpatrick v Sterling Housing Association [2001] 1 AC 27, to which Mr Wise referred (see Lord Clyde's speech at 49H to 50A). I hope I may be forgiven for not citing it. It seems to me to support a much narrower position than that contended for by Mr Wise.

In this context I should note that there has been a development since the judgment of the Divisional Court. In a note helpfully and properly provided by Mr Bennathan we are told that the Government has tabled an amendment to the Criminal Justice and Courts Bill whose effect would be, subject it should be said to complex qualifications, to empower the Crown Court to impose a lifelong ban on publicity in favour of victims and witnesses but not defendants who are under 18 when the proceedings commence. The amendment would introduce a new section 45A to the 1999 Act. We understand from Mr Hill QC for the Crown Prosecution Service that the Ministry of Justice has confirmed that the amendment was drafted "subsequent to and in light of" the Divisional Court judgment in this case.

Manifestly this prospective amendment is not an aid to the construction of section 39 of the 1933 Act. It may, depending of course whether it is enacted, alleviate some of the concerns in relation to victims and witnesses which the CPS have expressed in these proceedings. As I have indicated however, it will offer no protection to adults who were defendants when under 18 nor for that matter to adults who when under 18 were involved in civil proceedings.

I have said that the purpose of section 39 is to protect children and not adults. That is an important consideration for a number of reasons. It must at least diminish the impact of unincorporated international Conventions such as the United Nations Convention on the Rights of the Child upon the correct construction of section 39.

In any event the use of an unincorporated international Convention as an aid to interpretation arises only when the domestic measure to be construed is ambiguous. As I see it that is what is being recognised by Baroness Hale in Smith v Secretary of State for Work and Pensions & Anor [2006] 1 WLR 2024 at paragraph 78 upon which Mr Wise in particular relies. I do not for my part consider that section 39 is ambiguous, for the reasons I have given.

The Beijing Rules to which Mr Wise briefly took us cannot with respect advance the matter further.

I note that in T v Secretary of State for Justice & Anor [2013] EWHC 1119 (Admin) the Divisional Court, addressing a different provision of the 1993 Act, said:

I should note that section 31 of the Act requires arrangements to be made for preventing a child or young person in custody from associating with adults.

Further, I do not accept for the purpose of construing section 39 that a child's best interests (see in particular Article 3.1 of the United Nations Convention) are to be understood as necessarily encompassing his or her protection from publicity as an adult. The limited purpose of section 39 as I have described it, also with respect, diminishes much of the impact of legal materials from other common law jurisdictions, though there are certainly provisions which provide protection past the age of 18, such provisions are however express or arise by necessary implication (see for example section 110(3) of the Canadian Youth Criminal Justice Act 2002). This fact, that such matters arise expressly or by necessary implication, discourages the view that an extension beyond 18 can be read into the statute in reliance only on general considerations of policy. In any event, with great deference, these materials from other jurisdictions cannot in principle drive the construction of section 39.

Next, I do not think that the social good of rehabilitation can drive the section's interpretation either; and this notwithstanding the reference in the 1927 Report of the Departmental Committee on the Treatment of Young Offenders to which Mr Bennathan took us. It includes this sentence:

I turn now to the ECHR. The interpretation of section 39 urged by the appellants, which would extend the protection it offers in favour of adults who have been criminal defendants as children or young persons, would to my mind have a surprising effect on the balance to be struck in this context between the Article 8 right of the defendant or ex-defendant and the Article 10 right of the media to freedom of expression. The President said this at paragraph 29 of his judgment:

I respectfully agree with this and I consider also that that there is much force in this observation at paragraph 25 of Mr Millar's skeleton argument for the BBC:

I acknowledge that Mr Bennathan in his reply submitted that this difficulty to some extent exists already in certain contexts and no doubt there are mechanisms available to the press by which they may discover whether and when section 39 orders have been made but it seems to me it is simply unrealistic to suppose that the considerations there set out by Mr Millar are not of some substance.

The bite of Article 8 of the Convention is a major feature of Mr Bennathan's argument and indeed that advanced by Mr Wise. The balance to be struck between the claims of Articles 8 and 10 is of course extremely sensitive to the factual context. It is particularly helpful to recall the statement of principle made by Lord Steyn in the S case which I have already set out. That passage emphasises the importance of the particular circumstances, the "intense focus on the comparative importance of the specific rights being claimed in the individual case". In this connection I think it of considerable significance that section 39 offers potential protection to different classes of young people: victims, witnesses and defendants. As the President said at paragraph 9:

That is a complex background. It is important to note that a judge asked to make a section 39 direction in the course of proceedings will in every case balance the competing forces of Articles 8 and 10 but upon the section's conventional construction, which I favour, he will do so in a context limited by the fact that if he makes an order it will expire on the subject's 18th birthday. If his order under section 39 is extended, subject to later revocation, for the life of the subject it means that the judge is being asked to give very great, it may be thought overriding, weight to Article 8. Moreover, the common law principle of open justice is no less important; and is likewise intruded upon by the argument of the appellants.

The proposed new section 45A of the 1999 Act contemplates such orders in criminal proceedings in favour of victims and witnesses. The Article 8/10 balance may be different in the case of defendants. I do not think that a proper approach to that balance can justify what I would anyway regard as a strained reading of section 39. I do not consider, with respect, that Mr Wise has demonstrated that requiring the media to seek out historic section 39 orders and apply, if they choose, for their revocation, strikes what he called a more proportionate balance between the competing rights than leaving it to individuals to seek injunctive relief for extended protection against publicity. I acknowledge the expense and inconvenience that that course may involve.

I should say that I regard my conclusion in this case as entirely consonant with the development of the law of the European Convention exemplified by Neulinger v Switzerland [2010] 28 EHCR 7 especially paragraphs 131 and 135 referred to by Ward LJ in K v News Group [2011] 1 WLR 1127, a case referred to by Mr Bennathan this morning. I do not think that Lord Steyn's statement of principle in S is called into question by that learning.

It is to be noted, as Mr Millar QC for the BBC reminded us, that the common law gives power to allow a person involved in proceedings to withhold his name from the public and the press; although the common law also imposes a high hurdle before that is done.

I can see that there may be very strong arguments for a provision which would give a court a discretion to extend section 39 protection into the subject's adulthood. I cannot see, despite Mr Bennathan's submission in reply, that section 39 as it presently stands includes such an element. Indeed upon the construction which I prefer and which I have described such an option is simply not open. The conferment of any power to exercise such a discretion must be for the legislature. In this case I agree with the President's observations at paragraph 31 of his judgment:

In my view, the language of the statute, the provision's manifest purpose and the impact of our domestic human rights law militate in favour of the conclusion reached by the Divisional Court and for all these reason I would dismiss the appeal.

LADY JUSTICE KING: I agree.

LORD JUSTICE MOORE-BICK: I also agree that the appeal should be dismissed for the reasons given by my Lord, Lord Justice Laws. The eloquent submissions of Mr Bennathan QC on behalf of the appellants and of Mr Wise QC on behalf of the Intervener provide a powerful argument for giving the court power in an appropriate case to extend the protection to children and young persons given by section 39 of the Children and Young persons Act 1933 beyond their 18th birthdays but that is something that can be done only by Parliament.

For the reasons given by My Lord I am satisfied that the purpose of section 39 is not to promote the rehabilitation of young offenders but to protect children and young persons who are caught up in legal proceedings from the adverse effects of publicity to which they might otherwise be exposed. That seems to me to be the natural meaning of the section but it also seems to me to be reinforced by two factors. The first is this: as Mr Wise accepted, Parliament must have identified a need for protection that was common to all three classes of children and young persons who might benefit from an order made under the section but since those classes include victims and witnesses, and indeed other children and young persons who may be involved in proceedings in other capacities, the need to promote rehabilitation cannot have been what it had in mind.

The second is that by subsection (2) the section creates a criminal offence and Parliament is unlikely, in my view, to have intended to bring about a situation in which journalists were required to inquire into the existence and terms of an order made under section 39 before reporting matters relating to persons who had by then become adults.

I am therefore satisfied that an order made under section 39 is effective only during the minority of the person in respect of whom it is made and that it expires automatically on his or her 18th birthday.

For these reasons, as well as those given by Lord, Lord Justice Laws, I too would dismiss the appeal.