Aitken v Director of Public Prosecutions

Is a newspaper editor a person who publishes the contents of the newspaper? Most media law specialists would be likely to respond to the question with puzzlement. In civil claims for libel or misuse of private information editors are often sued as publishers of articles that are complained of. The law attributes responsibility for what is published to a wide variety of those involved in the process, and editors are usually involved enough for responsibility to attach. In this appeal by case stated, however, the question arises in the context of a criminal charge of contravening a reporting restriction imposed under s 39 of the Children & Young Persons Act 1933. The issue is whether Parliament intended when enacting s 39 that a newspaper editor should be exposed to criminal liability under the section.

The appellant is the editor of a regional paper published in the Northumberland area, called The Journal, which published a court report in breach of a reporting restriction order imposed under s 39 of the 1933 Act. The publishing company and the editor were both prosecuted. The company pleaded guilty but the appellant contested the charge. When the matter came before the District Judge in Newcastle-upon-Tyne Magistrates’ Court the appellant submitted that he had no case to answer because there is no power to prosecute a newspaper editor for the offence created by s 39. The Judge rejected that submission. The appellant changed his plea to guilty and was fined. He now submits that the District Judge’s ruling was wrong.

This contained two provisions affecting newspaper reporting relating to children involved in criminal proceedings: ss 39 and 49. Their common origin was s 81 of the Children and Young Persons Act 1932. Counsel’s researches suggest, however, that s 81 was never brought into force, but superseded by the provisions of the 1933 Act.

As originally enacted, s 39 was in these terms:-

The limiting words I have italicised in subsection (1) were repealed by the Children and Young Persons Act 1963, thus bringing criminal and civil proceedings of any kind within the scope of the section. The 1963 Act also enlarged the categories of children and young persons whose interests could be protected by a s 39 order. It did so by inserting words in subsection (1)(a) so that it referred to children and young persons “by or against or in respect of whom” proceedings were taken, as well as witnesses. The 1963 Act made a third change: by s 57(4) it provided that s 39 should apply to sound and television broadcasts as well as newspapers. Later, the scope of the section was expanded to cover cable TV. The Criminal Justice Act 1982 changed the maximum penalty to a fine “not exceeding level 5 on the standard scale” which is currently £5,000.

Section 39(1) as it stood at the material time therefore provided all courts in all proceedings, criminal and civil, with a discretionary power to prohibit the inclusion, in reports of the proceedings in newspapers or in sound or television broadcasts or cable programmes, of the specified kinds of information about, or pictures of, any child or young person by or against or in respect of whom the proceedings were taken, or who was a witness in the proceedings. Section 39(2) created an offence of publishing “any matter in contravention of a direction under this section”, which could be committed by “any person who publishes” such matter. The offence was one of strict liability, with a maximum penalty of a fine of £5,000.

Section 49 of the 1933 Act is concerned with youth justice. As enacted, it was headed “Restrictions on newspaper reports of proceedings in juvenile courts”. It contained an automatic prohibition on the inclusion in newspaper reports of any proceedings in such a court of identifying details or pictures of children and young persons involved in such proceedings. The prohibited matters were substantially identical to those set out in s 39(1)(a) and (b) of the Act. Provision was made, however, for a court or the Secretary of State to make an order dispensing with the requirements of subsection (1), to the extent specified in the order, “if satisfied that it is in the interests of justice to do so”. Section 49(2) was in terms similar to those of s 39(2). It provided that “Any person who publishes any matter in contravention of this section shall on summary conviction be liable in respect of each offence to a fine not exceeding fifty pounds.”

Section 49 has been much amended over the years. The current version is the tenth. Some of the amendments have been relatively minor, reflecting changes in nomenclature, in the delivery of youth justice, and in the system of fines. Thus, the term “youth court” is now substituted for “juvenile court”, appellate proceedings are included, and the maximum penalty is now a fine on level 5. Two main sets of amendments of substance had been made by the time of the events in issue here. The first was the extension of the section to cover sound and television broadcasts and then cable, in the same way as s 39. The second major change came when s 49 of the Criminal Justice and Public Order Act 1994 inserted an entirely new s 49 into the 1933 Act. I shall return to this, because the appellant relies on the changes made to s 49 in 1994 in support of his arguments about the scope of s 39, which was not amended at that time.

In 1999 Parliament passed legislation amending both s 39 and s 49. It did so as part of a package of amendments to the reporting restriction regime contained in the Youth Justice and Criminal Evidence Act (YJCEA). Those amendments remained dormant for many years, and were not in force at the material time. Indeed, it is only this year that the regime as amended by the YJCEA has been brought into force, in a further amended form, as part of a wider programme of reform of reporting restrictions in this area. But I mention the 1999 amendments because the appellant relies on them in support of his arguments as to the construction of s 39, as I shall explain. I shall also have some observations to make on the current state of the law at the end of this judgment.

On 30 April 2013 Tracey Graham, a teaching assistant, appeared at South-East Northumberland Magistrates’ Court, charged with offences of meeting a child following sexual grooming contrary to s 15(1) of the Sexual Offences Act 2003, sexual activity with a child contrary to s 9(1) of that Act, and putting a person in fear of violence by harassment contrary to s 4(1) of the Protection from Harassment Act 1997. The child concerned was a pupil at the school where Ms Graham worked. These being adult criminal proceedings the automatic restrictions under s 49 of the 1933 Act did not apply. The magistrates made a s 39 order in these terms:

On 2 May 2013 The Journal published an article naming the school, in contravention of the magistrates’ order. Another local paper, The Chronicle,published a similar article, also in breach of the order.

The Journal and The Chronicle are both published by the same company, NCJ Media Ltd, a subsidiary of Trinity Mirror plc. NCJ Media was charged with and pleaded guilty to two offences under s 39. It was in due course fined £2,160 on each charge and ordered to pay £5,000 towards the prosecution costs. The appellant, and the editor of The Chronicle,Mr Thwaites, were also charged. However, the CPS discontinued the prosecution of Mr Thwaites before trial on public interest grounds. It seems that he had been at a meeting in London at the time of publication. The journalist who wrote both articles and who had been in court when the order was made was not charged.

Having pleaded not guilty the appellant raised two points, which were argued before District Judge Earl on 24 September 2014, and ruled upon by him in a written judgment delivered on 27 October 2014. The first point was that Mr Aitken did not have a case to answer, because the editor of a newspaper which publishes matter in contravention of a s 39 order is not a “person who publishes” that matter within s 39(2). This was raised as a point of statutory construction, rather than a point of fact. There is no dispute that the defendant was performing his editorial duties on the evening in question and, although his case was that the journalist had failed to inform him or the newsdesk of the s 39 order, he accepted that he had no defence on the facts if the provisions of s 39(2) extend to editors as a matter of law.

The District Judge rejected the appellant’s construction, holding that s 39(2) was capable of embracing not just the publishing company but also others responsible for publication, including an editor or a journalist. The appellant thereupon pleaded guilty and was sentenced to a fine of £1,600. No order for costs was made.

The appellant’s second point was that the prosecution should be stayed as an abuse of process, having regard to the discontinuance of proceedings against Mr Thwaites. The District Judge dismissed that argument, and there is no challenge to that decision.

On 21 January 2015, on the appellant’s application, the District Judge stated a case for the opinion of this court, the sole question raised being:-

In his careful and elegant argument in support of the appeal Mr Alex Bailin QC advances four main submissions. The first is an overarching point about the right approach to the question with which we are concerned. He points out that we are interpreting a penal statute, and must construe it strictly and conservatively, without being tempted to stray into any process of creative interpretation. In this context he relies on the rule against penalisation under a doubtful law. The rule is of course a cardinal principle of statutory construction, well expressed by Brett J in Dickenson v Fletcher (1873) LR 9 CP1 at 7:

The applicability of this interpretative canon to s 39 itself was considered by Laws LJ in R (JC and RT) v Central Criminal Court [2014] EWCA Civ 1777, where the court upheld the decision of a Divisional Court ([2014] EWHC 1041 (Admin), [2014] 1 WLR 3697) that on the true construction of the statute a s 39 order expires when the young person turns 18. At [24] Laws LJ, with whom the other members of the court agreed, said that because s 39(2) creates a criminal offence “the section is to be construed not necessarily restrictively but at least conservatively unless there is a pressing greater imperative.”

JC was a case, as Mr Bailin points out, where the court considered it might well be desirable, or even necessary, that the protection given to children or young persons concerned as victims or witnesses in adult criminal proceedings should continue into adulthood. Yet the court concluded that it was not open to it to construe s 39 in such a way as to achieve that result. Laws LJ put it bluntly in the Court of Appeal at [19] “it is worth recording the obvious: that we are not here to legislate but to construe section 39 of the 1933 Act.”

It is with this important warning in mind that Mr Bailin invites us to consider his second submission: that an editor falls outside the scope of the words “any person who publishes”. An editor is involved in the publication process, he submits, as are journalists, desk editors, sub-editors and others; but an editor is “not the person who publishes” the newspaper. The statutory words denote “the publisher”, as opposed to any other person involved in the process of publication. A newspaper, Mr Bailin submits, will ordinarily have only one “publisher”, most often a publishing company. It is that person or, if there is more than one (as in a partnership), those persons who are designated by the statutory wording. Any other construction would be artificial or at best so unclear that the rule against doubtful penalisation would exclude it.

Mr Bailin’s submission is that, for this reason, when Parliament intends a publication offence to apply to editors it uses express statutory language to manifest that intention. In support of this limb of his argument Mr Bailin has provided a helpful schedule of some 22 statutory provisions from 1881 to 2015. He points to the routine inclusion in statutes which criminalise the publication of information of a provision to the effect that if the contravention is by publication in a newspaper it is “the”, or “any”, “proprietor, editor, or publisher” that will be guilty of an offence.

One example among many is the Sexual Offences (Amendment) Act 1992 (SOAA 1992). Section 1 accords lifetime anonymity to the alleged victims of sexual offences. It provides that:-

Mr Bailin relies on s 5(1) of the SOAA 1992 which provides that:-

I have underlined the words on which Mr Bailin particularly relies. It is relevant also to note the full context in which they appear, and that “publication” is defined broadly in s 6(1) of the 1992 Act:-

The effect of this broad definition is that s 1 SOAA 1992 prohibits the inclusion of the defined matter in any form of publication including for instance books and, although this cannot have been foreseen at the time, online publication. The provisions of ss 1 and 5 are typical of a format followed by statutory reporting prohibitions from the 1990s onwards. The statutory provisions relied on by Mr Bailin, other than those specifically dealt with in this judgment, are set out in the Appendix.

The third limb of Mr Bailin’s argument is, as I have indicated, that the history of amendments to ss 39 and 49 of the 1933 Act casts important light on the scope of the offence under s 39(2), and supports his construction.

The amendment of s 49 that is relied on is the one made by the Criminal Justice and Public Order Act 1994, by which the entire section was replaced with effect from 3 February 1995. The key amendment for the purposes of the appellant’s argument was the repeal of s 49(2) and its substitution by a new s 49(9), which read as follows:-

Although it may be noted that Parliament did not take the opportunity at that time to extend the reach of s 49 beyond newspapers and programme services, it will be immediately obvious that this wording is otherwise similar that of s 5 of the SOAA 1992, and in particular that it specifies that those guilty of an offence where the contravention is by newspaper publication will be “any proprietor, editor or publisher”.

Mr Bailin submits that the decision of Parliament in 1994 to jettison the words “any person who publishes” and to adopt a new formulation that expressly refers to “any proprietor, editor or publisher” must reflect an intention to alter the scope of the offence under s 49. He argues that it is clear that the intention reflected by this change of language is to widen the scope of criminal liability, not to narrow it. The submission is that if the original words were wide enough to catch an editor and a proprietor the amendment was completely unnecessary, which cannot have been Parliament’s intention. If the original wording of s 49(2) did not encompass an editor (or a proprietor), the same must be true of the identical wording of s 39(2).

Mr Bailin supplements this submission with the argument that the disjunctive use of the words “proprietor”, “editor” and “publisher” in the 1994 version of s 49 of the 1933 Act shows that the words have distinct meanings, and that the first two are not included within the scope of the latter. The word “publisher” here, he contends, is a term synonymous with the original wording “any person who publishes”; the two terms are indistinguishable and bear an identical meaning. Thus, the amendment of 1994 involved the creation of criminal liability for an editor where there was none before. It also, suggests Mr Bailin, involved the extension of liability to a “proprietor”, who was not within the scope of the term “any person who publishes” in the original version of s 49, either. Mr Bailin submits that his construction is also supported by the purpose of the 1994 Act as stated in its Long Title: “to amend or extend the criminal law and powers for preventing crime and enforcing that law.”

The 1994 Act made no amendment to s 39. It had been amended previously, however, as noted above. The fact that s 39 was amended three times without replacing the expression “any person who publishes” is relied on by Mr Bailin as an indication that Parliament must have intended to preserve the original enacted meaning of those statutory words which, on his submission, did not cover editors.

Mr Bailin next points to amendments enacted by the YJCEA 1999. The relevant effects of these amendments, if they had come into force, would have been as follows:-

To amend s 49 of the 1933 Act, the most significant amendments being these. Subsection (1) would have extended the range of publications covered by prohibiting the inclusion “in any publication” of matter identifying a child or young person concerned in youth court and related proceedings, while he was under the age of 18. Subsection (3) would have defined “publication” in broad terms, identical to those of s 6(1) of the SOAA 1992, quoted at 24 above. Section 49(9) would have been amended so as to define the categories of offenders in terms identical to those of s 5(1) of the SOAA 1992 above. A new subsection (9A) would have provided a person charged with an offence under s 49(9) with what Mr Bailin labelled a “due diligence defence”. The defence is made out if the defendant proved that “at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that he publication included the matter in question”.

To disapply s 39 of the 1933 Act to criminal proceedings, by the addition of a new subsection (3) as follows: “In this section ‘proceedings’ means proceedings other than criminal proceedings.”

To make provision, by s 45 of the YJCEA, for a new discretionary power to prohibit material identifying under 18s concerned in adult criminal proceedings. Section 45(3) provided that the court might

To define the offence of contravening a s 45 direction in terms that followed the pattern exemplified by s 5(1)(a) to (c) of the SOAA 1992 above. Sections 49(2), (3) and (4) of the YJCEA were materially identical to those provisions. Thus, s 49(2) provided that:

To provide, in s 50, a due diligence defence to a charge under s 49 of the YJCEA, in terms materially identical to those of the defence under the new s 49(9A) of the 1933 Act.

Thus, Mr Bailin submits, Parliament stepped in to harmonise the law as to the contravention by newspaper publication, of reporting restrictions in respect of children and young people concerned in criminal proceedings. Whether the prohibition was automatic under s 49 of the 1933 Act, or discretionary under s 45 of the YJCEA, those prima facie guilty of an offence would have been “any proprietor, any editor and any publisher.” In either case there was a due diligence defence available.

In the event, the only part of this scheme that was brought into force prior to 13 April 2015 was s 49, which applied to offences other than the one prospectively created by s 45(3). Until that time the discrepancy between s 39 and s 49 of the 1933 Act continued; there was no due diligence defence for either section; and the range of publications covered by each remained limited to newspapers and programme services. This last deficiency of s 39 was remarked on by Tugendhat J in MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB) [13], in the context of clinical negligence proceedings, and by Leveson LJ in In re Press Association (Robert Jolleys) [2014] 1 Cr App Rep 15 [17]-[18] in the context of criminal proceedings in the Crown Court. None of this affects Mr Bailin’s harmonisation point, however.

Mr Steven Kovats QC for the Crown submits that the answer to the question posed by the case stated is a simple one: the words “any person who publishes” in s 39(2) mean what they say, and cover an editor. This interpretation gives effect to the ordinary meaning of the words. As a matter of fact, an editor is responsible for what is published in the newspaper. That is an editor’s function. This interpretation also gives effect to the common law’s understanding of who “publishes” a newspaper, submits Mr Kovats, who has referred us to a number of authorities in support of that proposition. The appellant’s construction, he contends, does violence to the ordinary meaning of the words, requiring the subsection to be re-written as “any person other than an editor who publishes.” The appellant’s submission that “any person who publishes” means “publisher” is said to be wrong, as is the argument that “publisher” and “editor” are inherently mutually exclusive.

Mr Kovats submits that the amendments made to s 49 in 1994 cannot serve as any guide to what Parliament intended when it enacted ss 39(2) in 1933. Post-enactment amendments are legally irrelevant to the construction of a statutory provision, and all the more so when they are made to a provision other than the one which is to be construed. Mr Kovats has a fall-back position on the significance of the 1994 amendment. He agrees with Mr Bailin that the 1994 amendment altered the meaning of s 49, but submits that this point of itself begs the question at issue. It does not determine whether the amendment widened or narrowed the class of persons who can be guilty of the offence. Mr Kovats submits that it narrowed the class. The use of the terms “proprietor”, “editor”, and “publisher” serves to establish a limited class of persons who publish who are deemed to be guilty of the offence. The use of those three terms serves to exclude other “persons who publish”, who would otherwise be liable under s 49, and remained liable under s 39.

Whilst acknowledging the need to treat the argument from silence with caution Mr Kovats draws our attention to the fact that the point taken by this appellant was not among those raised before this court in Briffett v Crown Prosecution Service [2001] EWHC 841 (Admin), [2002] EMLR 12. That was an appeal by case stated by two editors who had been convicted of offences under s 39(2) of the 1933 Act, which raised seven questions as to the lawfulness of the convictions for the court’s opinion.

It seems to me that our starting point must be to consider the phrase “any person who publishes” as it appeared in ss 39(2) and 49(2) at the time of enactment in 1933, applying the primary rule of statutory construction: the so-called ‘golden rule’, that statutory words should be given their ordinary and natural meaning.

I do not accept Mr Bailin’s submission that in its natural meaning in ss 39(2) and 49(2) the expression “any person who publishes” referred and referred only to “the publisher(s)”, that is to say the one or more individuals, firms or companies responsible for the conduct of the relevant newspaper publishing business or operation. It is that construction which seems to me an artificial one. In construing a phrase such as this the court must seek to give effect to each word in it. Mr Bailin’s construction gives none, or virtually none, to the word “any”. That is of course an inclusive term. The flaw in Mr Bailin’s approach is in my judgment illustrated by his submission that an editor is not “the person who publishes”. That submission, which appeared in his skeleton argument, and was repeated in his oral submissions before us, tellingly substitutes “the” for “any”. It is for that reason that I have added underlining in the quotation. Mr Bailin’s submission also places far too much weight on the word “who”, which was italicised in his original. It is hard to see what other word could have been used.

In my judgment the natural, ordinary and most obvious interpretation of the phrase “any person who publishes” is that it refers to any person, natural or legal, who takes such a part in the process of publishing the matter that contravenes the direction or prohibition that it can properly be said of them that they “publish” the matter. As a matter of practice, and using language in its ordinary sense, the commercial publisher of the newspaper will invariably be one such person, but it does not by any means follow that such a publisher is the only person who will qualify. Nor does the wording used in the subsection so indicate. On the contrary, in my view it is a natural and not a forced reading of the expression “any person who publishes” to regard it as encompassing others responsible for bringing about the publication of the particular matter in question, including (assuming the particular facts of the case justify this conclusion) the editor in charge of the newspaper at the relevant time, and the journalist who wrote the matter.

It is a well-established principle of statutory construction that Parliament does not legislate in a vacuum, but against the background of and in the context of the surrounding common law: see Bennion on Statutory Interpretation 6^th ed 2013 section 327 at pp 929-931. The authorities to which Mr Kovats has referred us show that from at least as early as the first half of the 18^th century the common law has taken a broad view of who is responsible for the publication of material in newspapers and other printed matter. A wide variety of persons involved in the process of publishing has been treated as responsible for publication, and as being aptly described as “publishers”, with editors in modern times firmly established as leading figures in this class.

I deal first with the contempt cases. The first in what is a strand of consistent authority is Roach v Garvan(1742) 2 Atk. 469, 26 ER 683 otherwise known as The St James’s Evening Post Case. The Solicitor General moved to commit the printers of that paper and another for contempt by “publishing a libel” against the executors of Major John Roach and another, by “taxing them with turning affidavit men” in a case then pending between the executors and Major Roach’s widow. Lord Hardwicke LC declined to deal with any claim in libel, but addressed the charge of contempt. Neither printer denied that they had “published” the offending material as alleged. Their defences were that the material was not defamatory or, if it was, “yet there is no abuse upon the proceedings of this court.” Both were found guilty. In dealing with the printer of the St James’s Evening Post, whom he described as its “publisher”, Lord Hardwicke LC said that although it was said “by way of alleviation” that she did not know the nature of the paper and got her trade by printing, this was no excuse.

Roach v Garvan was applied by Lord Erskine LC in Ex parte Jones (1806) 13 Ves. Jun. 237, 33 ER 283. The Solicitor General moved at the instance of those charged with managing the affairs of a lunatic to remove and commit to prison the “Committee” of the lunatic (an individual, despite this title), his wife, and four printers “as the authors, printers, and publishers of a Pamphlet” which attacked the petitioners’ conduct. In this context it is clear that the term “publishers” was used to cover both the authors and the printers. There was no third person or group. Again, though the material was said to be libellous the Lord Chancellor dealt only with the contempt allegation, which was one of obstructing the course of legal proceedings by publication. The wife admitted being the author, but claimed her husband was innocent. Both were both found responsible for deliberate contempt. As to the printers, three claimed ignorance. Lord Erskine reiterated however that contempt by publication is a crime of strict liability:

The third case, McLeod v St Aubyn[1899] AC 549, illustrates the scope and limits of the common law principle. The appellant, a barrister, was also the St Vincent correspondent of The Federalist, a Grenada newspaper. The paper published an article and letter vehemently attacking the conduct and competence of the Acting Chief Justice of St Vincent, Geoffrey St Aubyn. The appellant, who was not the author of the article or involved in its publication in the newspaper, handed a copy of the paper unread to an acquaintance. He was committed by the Acting Chief Justice himself for contempt by scandalising the court by “negligently publishing the said copy of the said issue of the said newspaper”. The Privy Council advised that the appeal be allowed, Lord Morris explaining at 562:

This is how the common law authorities stood at the time the 1933 Act was passed. They show that, so far as the law of contempt is concerned, the common law context in which Parliament legislated at that time was one in which a wide range of participants were treated as “persons who publish”, although some who played an innocent role outside the commercial publication process, with insufficient awareness, might escape responsibility. Subsequent decisions of this court apply the earlier authorities to the position of editors. They affirm the unsurprising view that the principles reflected in the earlier authorities mean that editors, like others involved in the process of publication, are regarded by the law as persons responsible for publication, and as “publishers”, of the content.

In R v Evening Standard Co Ltd[1954] 1 QB 578 the Attorney General moved to commit the company, the editor, and a journalist for an article which prejudiced a current murder trial. Leading Counsel for the first two defendants, Sir Hartley Shawcross QC, submitted that whilst it was “recognized that it is a well-established principle of journalism that editors and proprietors are responsible for what is published in their newspapers… the editor and proprietors cannot be held vicariously liable for a contempt into which they had been led by their reporter” (p581). The submission was roundly rejected, Lord Goddard CJ responding at p 585 that “I do not think that we can possibly agree with that submission, which seems contrary to [R v Payne[1896] 1 QB 577 and Roach v Garvan].” The point is clear, though I do observe that to speak of vicarious liability, so far as the editor is concerned, seems to me a somewhat loose use of language; the principle in Roach v Garvan is one of strict liability for the defendant’s own conduct.

In R v Odhams Press Ltd ex p Attorney General[1957] 1 QB 73 the motion was to commit the printers and publishers of The People, its editor, and a reporter for contempt in respect of an article attacking one Anthony Micaleff and reporting – with exaggeration as it happened – his previous convictions. He was at the time, unbeknown to the respondents, the defendant to charges of brothel keeping. Gerald Gardiner QC for all three respondents submitted that at worst his clients had published negligently, and sought to distinguish the Evening Standard case on the grounds that in that case all concerned knew the proceedings were pending (p76). This submission was rejected in the judgment of the court given by Lord Goddard CJ, which reviewed the authorities, including those cited above and observed (at 79) that “in our opinion a review of the cases shows that persons who publish matter of this description charging alleged offences against the criminal law do so at the risk of not only being sued for libel but also of being punished for contempt if the criminal law has been set in motion.” The point is obvious but I make it nonetheless: the words “persons who publish” are almost verbatim those of s 39. Lord Goddard went on to deal explicitly with the editor’s position. At p83 he expressed the court’s regret at the impression given by the editor’s evidence, that it was no concern of his, and said: “It has always been a tradition of English journalism that the editor takes responsibility for what is published in his paper, and this was held to be a rule of law in Regina v Evening Standard Co Ltd.”

These cases all happen to have involved a close connection between defamation and contempt, and the Odhams Press case contains clear indications that the court regarded the principles of liability at common law as identical in respect of the two wrongs. I do not detect any difference, or none that is material to the present case. At common law, liability for defamation depends on responsibility for publication, which turns on involvement in the process. Thus, the publishing company or firm, the editor, journalist, printer and distributor are all prima facie liable for publication of defamatory matter. The mental element required to impose legal responsibility at common law for the publication of words was considered by Eady J in Bunt v Tilley[2006] EWHC 407 (QB), [2007] 1 WLR 1243. Referring to McLeod v St Aubyn he said at [22] that “it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility”. At [23] he observed that “Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.”

As early illustration of the defamation principles at work in practice, and of the use of the term “publish” as a description of the role or function of an editor is provided by Keyzor v Newcombe (1859) 1 F & F 560, 175 ER 852, an action by an optician for the publication of a libellous advertisement placed by a rival. Pollock CB directed the jury (p562): “If you look upon the editor as a person who has published a libellous advertisement incautiously, of course he is liable.” Again, the resemblance of this language to that of s 39 is striking. It is noteworthy also that the action is described in the report as one against the “proprietor” of the newspaper. This, and the submissions of Leading Counsel for the first and second defendants in the Evening Standard case, above, both show that “proprietors” were regarded as publishers prima facie responsible for publication in contempt and in libel.

Mr Bailin submits that we should not have regard to these authorities. They are not concerned with criminal liability under statute but with liability under the law of contempt of court, which is sui generis and has a substantial number of special characteristics, or liability for libel, which is still more remote. Neither strand of authority should be treated as having a bearing on the question of statutory construction. He points to Bennion section 327 as authority that it is only the common law in the same legal “territory” as a statute that is to be treated as relevant context for the purposes of construction. In my judgment, however, the law relating to responsibility for publication in the context of newspaper publishing is precisely the legal territory into which Parliament stepped when enacting the 1933 Act. To ignore these well-established principles would be to construe the Act in blinkers.

I have asked myself whether there might be a meaningful distinction to be drawn between holding a person responsible for publication and describing them as a “person who publishes”. However, I do not consider that there is any such distinction, in this legal context. In my judgment it is clear that principles of common law which were long-established by 1933 held that editors and, I would add, proprietors were within the range of persons responsible for the publication of what appeared in their newspapers, and who would aptly be described as persons who published such content.

There is no doubt that Mr Bailin is right to submit that a large number of statutes prohibiting publication of particular kinds of information have specified that criminal liability for newspaper publication in contravention of such prohibitions should fall on proprietors, editors, and publishers. In my opinion, however, a proper analysis of the statutory provisions serves to undermine rather than to support the appellant’s submissions.

I consider first the four statutes which the appellant’s research has identified as having been passed by Parliament before the 1932 Act. The Newspaper Libel and Registration Act 1881 contained provisions to amend the law of libel and to provide for the registration of newspaper “proprietors”, a term defined by s 1. This requirement is still in force. Its manifest purpose is to facilitate the identification of one category of those responsible for publication. Section 4 related to criminal libel. It is still in force in Northern Ireland in respect of blasphemous libel, but no longer in force in England and Wales, as the crime was abolished in 2010. Section 4 was a provision for the benefit of the press. It enabled “A court of summary jurisdiction upon the hearing of a charge against a proprietor, publisher, or editor, or any person responsible for the publication of a newspaper, for a libel published therein” to receive evidence as to public interest or other matters which could have been given in evidence on a trial on indictment. The wording reflects the fact that at common law the crime of libel could be committed by a range of persons responsible for publication including, but by no means limited to, proprietors, publishers and editors. In this context, it is clear from the immediate context as well as the common law background that the word “publisher” must have a narrow meaning corresponding to “publishing business” or “commercial publisher”.

Almost identical wording appeared in s 8 of the Law of Libel Amendment Act 1888. This also afforded the press protection against charges of criminal libel, by requiring the court’s permission for a prosecution. It provided that “No criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge at chambers being first had and obtained.” The accused had a right to notice and a hearing. Again, the wording reflects the fact that proprietors, publishers and editors are at common law responsible, but only sub-groups of those responsible, for newspaper publication.

In the 1920s proceedings for marital dissolution, nullity or separation were heard in public. Section 1(1) of the Judicial Proceedings (Regulation of Reports) Act 1926 sought to mitigate the impact on personal privacy. It provides that “It shall not be lawful to print or publish, or cause or procure to be printed or published” indecent medical, surgical or physiological details revealed in such proceedings. Subsection (2) as enacted provides that “If any person acts in contravention of the provisions of this Act” he should be liable to imprisonment for up to 4 months or a fine of up to £500 or both, but the broad term “any person” is then expressly qualified in this way: “Provided that no person other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act.”

In 1928 Parliament made it an offence to “print for publication or publish” any list of agricultural charges or of the names of the farmers creating them: Agricultural Credits Act 1928, s 10. Section 10(2) provides that “any person” who acted in contravention shall be liable to a fine, but contains a proviso identical to that in s 1(2) of the 1926 Act. (I use the present tense as both the 1926 and 1928 Acts remain in force today, unamended save as to the penalty.) As Mr Kovats points out, this legislative technique assumes that the broad category of “any person” who could commit the offence of printing for publication or publishing includes not only proprietors, editors, master printers and publishers but also others. The proviso serves to restrict the scope of liability to the specified sub-groups, excluding those who would otherwise be exposed to criminal liability for publication. The only act prohibited by s 10 which an editor or proprietor could commit would be to “publish”.

This, then, was the statutory position when s 81 of the 1932 Act and ss 39 and 49 of the Act of 1933 were enacted. Neither followed any pattern such as that of the Acts of 1926 and 1928. The wording used in 1933 was broad, with no limiting proviso. Absent such a proviso the expression “any person who publishes” must in my judgment be given a meaning corresponding with its broad common law meaning.

Subsequent statutory provisions prohibiting publication do not assist the appellant’s argument. They fall into three categories. One is represented by a single provision, 58(1) of the Magistrates Courts Act 1952 (now repealed), which provided that “It shall not be lawful for the proprietor, editor or publisher of a newspaper or periodical” to print or publish or cause or procure to be printed or published certain matter. The second category adopts what is by far the most common technique: the one exemplified by ss 1 and 5 of the SOAA 1992. There is a prohibition, followed by a section or subsection identifying the persons who are guilty of an offence if a contravention takes place. Who is guilty depends on the mode of publication. In the case of contraventions in newspapers and periodicals those persons are invariably “the”, or “any”, “proprietor”, “editor”, or “publisher”. Provisions such as these do not in my judgment support Mr Bailin’s submission, that editors are specified whenever Parliament intends to impose criminal liability upon them. The correct conclusion, taking account of the common law background and earlier statutes, is that such provisions are evidence of a legislative policy of restricting criminal liability for newspaper publication in contravention of statutory prohibitions to a more limited class of people than would otherwise be liable. Editors are within the class targeted for liability. Again, in this context, the word “publisher” must be read as bearing the narrower meaning of a commercial publisher.

It is notable that in statutes which, like the SOAA 1992, criminalise publication otherwise than in newspapers, periodicals or programme services/relevant programmes the persons guilty of an offence in the event of publication in other ways are “the person who publishes it” or “any person who publishes it”. This wording is plainly different from, and in my judgment clearly broader than, the wording that identifies those responsible for the offence in the case of newspaper publication.

The third category of statutory provision to which I have referred is comprised of s 3 of the Contempt of Court Act 1981, s 1 of the Defamation Act 1996 and s 10 of the Defamation Act 2013. The common feature of all of these provisions is that they take as their implicit starting point the common law position that responsibility for publication falls on a wide range of participants. They show the legislature stepping in to protect those who play a minor role in publication, in ignorance, despite due diligence, of some key feature of the wrong. They do not – at least in libel – protect editors, or others with primary roles.

Thus, s 3 of the 1981 Act provides a defence of innocent publication for those who can show ignorance, despite due diligence, that proceedings were “active” (compare the Odhams Press case). Section 1 of the 1996 Act provides a person who publishes a defamatory statement with a defence, known colloquially as “innocent dissemination”, if he can show that he was not the “author”, “editor” or “publisher” of the statement and that he took reasonable care, and did not know and had no reason to believe that what he did contributed to the publication of a defamatory statement. Section 10 of the 2013 Act goes further by depriving the court of jurisdiction to hear and determine an action for defamation against someone other than an “author”, “editor” or “publisher” unless the court is satisfied that it is not reasonably practicable for an action to be brought against one or more of those persons. A “publisher” for the purposes of each of these provisions is defined in s 1(2) of the 1996 Act as a “commercial publisher ... whose business is issuing material to the public …”. Even without that definition it would be obvious, as in earlier statutes, that the word in its context could not bear its broad common law meaning; to give it that meaning would defeat the manifest legislative objective.

My conclusion is therefore that review of other statutes concerned with publication offences, and with contempt and the civil law of libel, supports the views I have formed by reference to the ordinary meaning of the statutory wording and the common law authorities.

Mr Kovats was clearly right to submit that the meaning of s 39 cannot be altered by post-enactment legislation. Nor do I consider that any inference as to Parliament’s intention in 1933 can be drawn from what it did to s 49 in 1994. At best, an inference might be drawn about what Parliament thought in 1994 was the meaning of the 1933 Act. In any event, I do not accept Mr Bailin’s argument on this issue. He is wrong to suggest that on the Crown’s interpretation of “any person who publishes” this amendment was “completely unnecessary”. Granted, on that interpretation, with which I agree, all three of the classes of person listed in s 49(9) of the 1933 Act as substituted in 1994 were within the scope of s 49(2) as originally enacted. It by no means follows, however, that there was no purpose to the amendment. On the contrary, the amendment gave effect to the general legislative policy I have identified above, of limiting criminal liability for the contravention of statutory restrictions on publication to three specified sub-groups of the broader class of persons who “publish” at common law. The amendment thus had the effect of freeing journalists, and others who could in principle have been exposed to liability under the former version of s 49(2), from the fear of criminal liability under that provision. The fallacy in Mr Bailin’s argument is to treat “any person who publishes” as synonymous with “publisher” in the sense of a commercial publisher. That approach ignores the existence of a broader meaning of the word “publisher”, in both ordinary language and common law.

I do not find that the fact that s 39 was not amended in or before 1994 assists us in our task, either. The District Judge concluded that Parliament intended a wider class of persons to be exposed to liability for breach of discretionary restrictions than mandatory ones. I agree with Mr Bailin that this reasoning is unsatisfactory. No reason has been suggested as to why Parliament might have had such an intention, and it would in my view be inappropriate to infer such an intention from mere silence or inactivity as regards s 39. By the same token, however, on the appellant’s case Parliament chose in 1994 to make editors criminally liable for breach of automatic restrictions where they were not liable before, whilst leaving them free of liability for contravention of discretionary restrictions. No satisfactory explanation for such a legislative choice has been offered, or is apparent. Sometimes a court may be driven to conclude that the legislature has simply overlooked an amendment that would have made the law consistent, and that is my conclusion on this issue.

The partial harmonisation of the law by the YJCEA 1999 tends in my view to support the conclusion I have just mentioned. Otherwise, it is to my mind entirely equivocal. It is clear enough that Parliament decided at that time that, in addition to extending their reach to encompass the vast range of electronic communication which was beginning to open up in the late 1990s, the range of persons who could commit the offences of breaching automatic and discretionary restrictions in criminal proceedings should be the same. Nothing in the amendments provides any indication as to why this was not done sooner. Nothing in the amendments helps resolve the argument over whether the change from “any person who publishes” to “proprietor, editor or publisher” was one that widened or narrowed the range of potential offenders.

I note in passing that the YJCEA would have left one discrepancy untouched, whilst creating a new one. The fact that s 39(2) remained unamended would have left a difference between the range of persons who could commit the offence of contravening a reporting restriction in criminal proceedings and those who could commit the offence in respect of civil proceedings. The fact that s 39(1) remained unamended whilst s 49 was amended and s 45 created would have meant that the publication of prohibited matter in books, or electronic media, became a crime if the prohibition related to criminal proceedings, but not if the prohibition was imposed by means of a s 39 order in civil proceedings.

Throughout my consideration of this case I have been mindful of Mr Bailin’s overarching point, and the need to ensure that we do not construe the criminal offence created by s 39 in an unduly expansive way. In my view, however, the meaning of the provision is clear and distinct and there is no room for the application of the rule against doubtful penalisation.

For the reasons I have given, my answer to the question posed by the case stated is that the editor of a newspaper does not as a matter of law fall outside the scope of the expression “any person who publishes” in s 39(2) of the 1933 Act. I put it that way because, in contrast to most of the other statutory provisions we have examined in the course of this case, the 1933 Act does not deem an editor to be guilty of an offence if his newspaper publishes in contravention of its provisions. To make out the offence under s 39 against any person the prosecution would need to prove so that the magistrates were sure that the defendant’s conduct on the particular occasion was such that he published the matter that creates the contravention.

Although I have not relied on the “argument from silence” in reaching my conclusions on the meaning of s 39(2) I do consider that those conclusions derive some limited support from the fact that the interpretation contended for by Mr Bailin evidently did not occur to the experienced specialist Leading and Junior Counsel representing the appellants in Briffett v CPS. Ihave reached my conclusions as a matter of interpretation and emphatically not as a matter of policy. But I also take comfort from the fact, vividly illustrated by Mr Bailin’s research, that it would have been anomalous for editors to be exempt from liability under s 39 when they are prima facie liable at common law for libel and contempt, and are expressly identified as persons liable under every other statute put before us that imposes criminal liability for publication.

I turn briefly to the new regime that came into effect from 13 April 2015. It has the following main features.

The amendments to s 49 of the 1933 Act provided for by the YJCEA were finally brought into force. The automatic reporting restrictions in respect of youth justice now extend therefore, beyond the print and broadcast media to cover other forms of communication, including online publication. Those who may be liable have a due diligence defence under s 49(9A).

Section 39 of the 1933 Act is amended by s 79 of the Criminal Justice and Courts Act 2015. It now applies, as was the intention in 1999, to proceedings other than criminal proceedings – civil matters, and certain hybrid proceedings. The amendments also extend the range of publications in respect of which a discretionary reporting restriction order under the section may be made in civil proceedings, in the same way and to the same extent as the amendments to s 49 of the 1933 Act. The deficiency identified in MXB is thereby addressed.

The substituted regime for discretionary reporting restrictions in adult criminal matters provided for by s 45 of the YJCEA has been brought into force. The offence of breaching such a restriction is subject to the due diligence defence under s 50 of that Act.

There is now an additional regime for discretionary restrictions in any criminal matter. The Criminal Justice and Courts Act 2015 amended the YJCEA by adding a new s 45A, which has been brought into force, conferring a discretionary power under specified circumstances to make a lifelong reporting restriction in respect of a victim or witness who is under 18 during the proceedings. Again, the due diligence defence in s 50 YJCEA will be available.

This last change was evidently prompted by JC v Central Criminal Court, in which the court identified the fact that, under the law as it stood, anonymity could only last for as long as a person remained under 18 as “a lacuna in the law” regarding the protection of young victims and witnesses, which “requires to be addressed as a matter of real urgency”: Sir Brian Leveson P (with whom Cranston and Holroyde JJ agreed) at [2014] 1 WLR 3697 [36]-[38], and the observations of Laws LJ (with whom King J agreed) and Moore-Bick LJ in the Court of Appeal at [2014] EWCA Civ 1777 [46] and [49].

This is not the occasion for any detailed consideration of this new regime. I do however draw attention to three features of it. First, the discrepancy between the regimes in criminal and civil proceedings that would have resulted from implementation of the YJCEA reforms as enacted is not removed by the new regime. Criminal liability for newspaper publications in breach of a reporting restriction in respect of criminal proceedings is now expressly limited by ss 45, 45A of the YJCEA and s 49 of the 1933 Act to proprietors, editors, and publishers, but the same is not true of liability for breach of s 39 orders. The 2015 Act amends the phrase “any person who publishes” in s 39(2), but the amended section attributes liability to “any person who includes in a publication” matter prohibited by a s 39 order. Similar considerations arise in respect of broadcasts and cable programmes. Secondly, there is no due diligence defence to a charge of breaching a s 39 order. Thirdly, the wording of s 39 that led this court and the Court of Appeal to conclude in JC that it does not confer power to grant anonymity into adulthood remains. There is no counterpart in civil proceedings of the power to grant lifelong anonymity that is conferred on criminal courts by s 45A of the YJCEA.

It is hard to believe that these discrepancies between the regimes for criminal and civil proceedings are deliberate. They seem to me undesirable, and liable to generate needless and problematic uncertainty. Section 39 is likely to be of continuing importance in civil cases. It is also inherently likely that there will be parallel or sequential civil and criminal proceedings involving the same children or young persons, to which as things stand differing statutory anonymity regimes would apply. For those reasons I suggest that the discrepancies are a fit subject for the attention of Parliament.

I agree.

I agree with Warby J that for the reasons which he gives the appeal must be dismissed. I also agree with his concluding remarks about the discrepancies in this area of the law. Even after the very recent and detailed amendments made in the Criminal Justice and Courts Act 2015, the scheme of statutory reporting restrictions remains incoherent and is in need of further review.

If anything is included in a publication in contravention of the prohibition imposed by paragraph 1(2) each of the persons responsible for the publication is guilty of an offence.

…

The persons responsible for a publication are as follows –