England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		6th October 2003

Monday, 6th October 2003
1. MR JUSTICE SULLIVAN: Introduction:
2. This is an appeal by way of case stated against a determination by the South Shields Magistrates' Court on 16th April 2003, that section 49 of the Children and Young Persons Act 1933 ("the Act") no longer applies, so as to prevent the publication of reports identifying T, the appellant in these proceedings, who had been sentenced in the Youth Court to a 4 month Detention and Training Order, in respect of an offence under section 20 of the Offences Against the Person Act 1861.
3. The facts:
4. The material facts can be briefly stated. T was born on 12th October 1984. On 25th March 2002, when he was 17 years old, he assaulted a court usher at Sunderland Magistrates' Court. T pushed the usher who fell to the ground, breaking a number of bones in his foot. On 29th June 2002 T was charged with causing grievous bodily harm to the usher. On 4th July he made his first appearance in the Youth Court, and on 9th October he entered a plea of not guilty. At that stage the Crown was not prepared to accept lack of intent to cause any injury. 3 days later, on 12th October 2002, T became 18 years old, but his case continued to be dealt with by the Youth Court, pursuant to the provisions of section 29(1) of the Children and Young Persons Act 1963.
5. A trial date was set for the 21st March 2003. On that day he pleaded guilty on the basis that while he deliberately pushed the usher he did not intend to cause the injuries, but had been reckless as to whether or not injury would be caused. The Youth Court adjourned the matter for reports and sentenced T to a 4 month Detention and Training Order on 16th April 2003. After sentence was pronounced a representative of the second respondent made an application to the court. The application was, firstly, that the court should determine that section 49 was no longer applicable because T was no longer a child or young person and, secondly, that if section 49 was still applicable the court should exercise its discretion under section 49(4A) of the Act, to permit the identification of T.
6. T's solicitor resisted the application. The CPS adopted a neutral stance. Having heard submissions and received advice from their clerk, the Magistrates concluded that section 49 no longer applied because the appellant had attained the age of 18. They therefore did not proceed to consider the exercise of their discretion under section 49(4A).
7. The question they posed for the opinion of the High Court is as follows:

"In considering an application by the press for an Order under section 49(4A) of the Children and Young Persons Act 1933 were we right to conclude that the reporting restrictions contained in section 49(1) no longer applied once a defendant had attained 18 years and was therefore neither a child nor a young person, as provided for, exclusively, within section 49(1)?"

8. From T's point of view the question is, to an extent, academic, since on the following day, 17th April, the Sunderland Echo, one of the papers published by the second respondent, identified him and published his photograph in an article headlined: "Thug named and shamed for attack".
9. It is, however, submitted by Mr Plowden on his behalf, that the question posed by the Magistrates (above), in this case, is of general importance to all defendants who become 18 during the course of proceedings before the Youth Court.
10. The statutory framework:
11. Before turning to the rival submissions it is helpful to set out the relevant provisions in the Act. Section 49 has been much amended over the years. In its current form it provides, so far as relevant for present purposes:

"(1) The following prohibitions apply (subject to subsection (5) below) in relation to any proceedings to which this section applies, that is to say -

(a) no report shall be published which reveals the name, address or school of any child or young person concerned in the proceedings or includes any particulars likely to lead to the identification of any child or young person concerned in the proceedings; and -

(b) no picture shall be published or included in a programme service as being or including a picture of any child or young person concerned in the proceedings.

(2) The proceedings to which this section applies are -

(a) proceedings in a youth court;

(b) proceedings on appeal from a youth court...

(3) The reports to which this section applies are reports in a newspaper and reports included in a programme service; and similarly as respects pictures.

(4) For the purposes of this section a child or young person is "concerned" in any proceedings whether as being the person against or in respect of whom the proceedings are taken or as being a witness in the proceedings.

[(4A) If a court is satisfied that it is in the public interest to do so, it may, in relation to a child or young person who has been convicted of an offence, by order dispense to any specified extent with the requirements of this section in relation to any proceedings before it to which this section applies by virtue of subsection (2)(a) or (b) above, being proceedings relating to -

(a) the prosecution or conviction of the offender for the offence...

(5) Subject to subsection (7) below, a court may, in relation to proceedings before it to which this section applies, by order dispense to any specified extent with the requirements of this section in relation to a child or young person who is concerned in the proceedings if it is satisfied -

(a) that it is appropriate to do so for the purpose of avoiding injustice to the child or young person; or

(b) that, as respects a child or young person to whom this paragraph applies who is unlawfully at large, it is necessary to dispense with those requirements for the purpose of apprehending him and bringing him before a court or returning him to the place in which he was in custody."

12. Subsection (6) then applies paragraph (b) of subsection (5) to any child or young person who is charged with or has been convicted of certain types of offence. Subsection (7) imposes restrictions upon the exercise of the discretion under subsection (5)(b).
13. By subsection (9):

"If a report or picture is published or included in a programme service in contravention of subsection (1) above, the following persons, that is to say -

(a) in the case of publication of a written report or a picture as part of a newspaper, any proprietor, editor or publisher of the newspaper;

(b) in the case of the inclusion of a report or picture in a programme service, anybody corporate which provides the service and any person having functions in relation to the programme corresponding to those of an editor of a newspaper, shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale."

14. As amended by the Criminal Justice Act 1991, section 107 of the Act defines a child as a person under the age of 14 years and a young person as a person who has attained the age of 14 and is under the age of 18.
15. The automatic restriction upon identifying children and young persons concerned in proceedings before youth courts is complemented by the discretionary power conferred by section 39 of the Act to impose reporting restrictions on the identification of children and young persons concerned in proceedings before the ordinary courts. Section 39(1) is as follows:

"In relation to any proceedings in any court... the court may direct that -

(a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person [by or against] or in respect of whom the proceedings are taken, or as being a witness therein;

(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

Except insofar (if at all) as may be permitted by the direction of court".

16. For completeness section 44 of the Act should also be mentioned. Under the heading "General Considerations" it provides that:

"(1) Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person..."

17. Proposed amendments:
18. Section 49 is amended by section 48 of and paragraph 3 of schedule 2 to the Youth Justice and Criminal Evidence Act 1999. When it is brought into force paragraph 3(2) of schedule 2 will substitute a new subsection 49(1) in the following terms:

"No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings."

19. This will mirror the restrictions upon reporting alleged offences involving persons under 18 where investigations have begun, introduced by section 44(2) of the 1999 Act, which prohibits identification while the person under investigation is under the age of 18. Section 45 of the 1999 Act confers a power similar to that presently conferred by section 39 of the 1933 Act to prohibit the identification of persons under 18 involved in criminal proceedings in adult courts. By section 45(3), restrictions may be imposed, "while [the person concerned] is under the age of 18." Section 39 of the 1933 Act is amended so that it no longer applies to criminal proceedings.
20. The wider context
21. There is a valuable summary of the wider context in which these provisions are to be construed in the judgment of the Divisional Court in McKerry v Teesdale and Wear Valley Justices [2001] E.M.L.R. 127. The case was concerned with the exercise of the discretionary power under section 49(4A). Lord Bingham CJ, with whom Klevan J agreed, recited the relevant provisions of the Act and then said this:

"12. These provisions of domestic legislation are to be read against a background of international law and practice to which the European Court of Human Rights has recently drawn attention in judgments in T v United Kingdom and V v United Kingdom [1999] 30 E.H.R.R. 121. These judgments draw attention to the Beijing Rules adopted by the United Nations General Assembly on November 29th, 1985. They are not binding in international law and states are invited, not required, to observe the rules approved. The rules do, however, provide in Rule 8 for protection of privacy and provide:

'8.1 The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.

8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.'

13. The European Court also drew attention to the United Nations Convention on the Rights of the Child 1989. This Convention was adopted by the General Assembly of the United Nations on November 20th, 1989 and the Articles do have binding force in international law, binding Member States of the Council of Europe, including the United Kingdom. Article 3.1 of this convention states:

'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.'

14. Article 40 provides so far as relevant:

'1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

2. To this end... the States Parties shall, in particular, ensure that...

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees...

(vii) To have his or her privacy fully respected at all stages of the proceedings.'

15. Attention is also drawn to Recommendation No. R(87)20 of the Committee of Ministers of the Council of Europe, which was adopted on September 17th, 1987. That Recommendation included the following:

'Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ('the Beijing Rules'),

Recommends the governments of member states to review, if necessary, their legislation and practice with a view...

8. to reinforcing the legal position of minors throughout the proceedings... by recognising, interalia ... the right of juveniles to respect for their private lives...'

16. Attention may also be drawn to the European Convention on Human Rights which, in Article 8, provides:

'1. Everyone has the right to respect for his private and family life, his home and his correspondence...'

It goes on to provide in paragraph 2 so far as relevant:

'There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of... the prevention of disorder or crime... or for the protection of the rights and freedoms of others.'

Article 8 is of course balanced by Article 10 which so far as relevant provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of... the prevention of disorder or crime."

22. Lord Bingham continued in paragraph 17:

"It is in my judgment plain that there is in a situation such as the present some tension between competing principles. It is a hallowed principle that justice is administered in public, open to full and fair reporting of the proceedings in court, so that the public may be informed about the justice administered in their name. That principle comes into collision with another important principle, also of great importance and reflected in the international instruments to which I have made reference, that the privacy of a child or young person involved in legal proceedings must be carefully protected, and very great weight must be given to the welfare of such child or young person. It is in my judgment plain that power to dispense with anonymity, as permitted in certain circumstances by section 49(4A), must be exercised with very great care, caution and circumspection. It would be wholly wrong for any court to dispense with a juvenile's prima facia right to anonymity as an additional punishment. It is also very difficult to see any place for 'naming and shaming.' The court must be satisfied that the statutory criterion that it is in the public interest to dispense with the reporting restriction is satisfied. This will very rarely be the case, and justices making an order under section 49(4A) must be clear in their minds why it is in the public interest to dispense with the restrictions."

23. Submissions:
24. Against this background Mr Plowden submits that the Magistrates' approach to section 49(1) ignores the use of the words "proceedings" in that subsection. Proceedings are a continuum rather than a single hearing. In the present case proceedings commenced against the appellant on 4th July 2002, when he first appeared as a young person before the Youth Court. Accordingly section 49 applied throughout the proceedings, despite the fact that by the time they had concluded the appellant had turned 18.
25. The Magistrates had a discretion to lift reporting restrictions under subsection (4A), but they had expressly not exercised that discretion. It was submitted that these contentions, on behalf of the appellant, reflected the present practice of Youth Courts which would be altered when paragraph 3(2) of Schedule 3 to the 1999 Act was brought into force. The amendment effected by paragraph 3(2) would have been unnecessary if the Youth Court's approach to section 49(1), as presently enacted, was correct.
26. The effect of the Magistrates' interpretation would be to introduce an undesirable element of uncertainty, requiring the Youth Court and those wishing to report cases in the Youth Court to keep the age of the defendant and/or any witnesses under constant review. Reference was made to the definition of juveniles in paragraph 2.2 of the Beijing Rules:

"... a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult."

A Detention and Training Order may not be made in respect of a defendant over the age of 18.

27. It was further submitted that identifying the appellant was an interference with his rights under Article 8 of the Convention.
28. On behalf of the second defendant (the first defendant not being represented before this court) Mr Hudson laid particular emphasis upon Article 6 and 10 of the European Convention on Human Rights. The reporting of court proceedings is a most important aspect of both the right to a fair trial and freedom of information. Any measure restricting those rights, particularly one which creates a criminal offence, should be narrowly interpreted. The purpose of section 49 is to protect the interests of children and young persons while they are children and young persons. Once they are 18 years old they are entitled to no greater protection than any other adult.
29. Section 49 does not simply prohibit publication of the reports of proceedings in Youth Courts generally. For a criminal offence to be established under section 49(9) it must be proved that a report has been published, that the report reveals a name, address, or school; that the name, address, or school, is that of a child or young person and that that child or young person is or was concerned in proceedings in the Youth Court.
30. The appellant's focus upon the word "proceedings" ignores the further requirement that the report must identify a person who is a child or young person. Once the person concerned in the proceedings is 18 years old he or she can no longer be described as a child or young person concerned in the proceedings and so the restrictions imposed by section 49 fall away.
31. Mr Hudson submits that the Magistrates' approach to section 49 is consistent with the terms of subsections (4A) and (5). The discretion to dispense with reporting restrictions applies only, "in relation to a child or young person who has been convicted of an offence..." Under subsection (5) the court may dispense with the requirements of the section, "in relation to a child or young person who is concerned in the proceedings..."
32. If, like the appellant, the person convicted or concerned in the proceedings has turned 18 he is no longer a child or young person, so there would be no power to permit his identification under subsection (4A) or (5). For the purposes of subsections (4A) and 5(B) he would thus be in a more favourable position than a person who was under 18 at the time of conviction. For the purposes of subsection (5)(a) he would be in a less favourable position than such a person.
33. The substituted provisions introduced by the 1999 Act are, it is submitted, of no assistance in construing section 49 as presently enacted. The revised wording is not intended to effect any change in the law that is material for present purposes, but rather to bring the wording of the new section 49(1) into line with the wording of the new provisions in sections 44 and 45 of the 1999 Act (see above).
34. Section 49 is not concerned solely with defendants. It is also concerned with the victims of crime and with witnesses in proceedings before the youth courts. There is no reason why a witness who has turned 18 should not be identified. Moreover, a consistent approach has to be adopted as between sections 39 and 49. No good reason has been advanced as to why a defendant or witness in proceedings in an adult court, who has turned 18 during the course of proceedings, should not be identified.
35. In R v Central Criminal Court ex p. W, B and C [2001] 1 Cr.App.R. page 7, this point does not appear to have been the subject of argument, but Rose LJ was prepared to proceed upon the basis that an order made under section 39 would last only until a defendant turned 18 (see paragraph 38 of the court's judgment).
36. Conclusions:
37. The provisions of the European Convention on Human Rights and the wider background of international law and practice referred to in McKerry (above), are, in my view, of somewhat limited assistance in answering the question posed by the Magistrates in the present case. McKerry was concerned with the exercise of a discretion in relation to a child or young person. Clearly a balance has to be struck between the competing principles of ensuring on the one hand the full and fair reporting of court proceedings, and on the other the protection of the welfare of children and young persons involved, whether as witnesses or as defendants, in such proceedings.
38. Views may legitimately differ as to precisely where the balance should be struck in those cases where a person ceases to be a juvenile and becomes an adult before the conclusion of the proceedings. This is very much a matter of detail rather than an issue of principle, and it is, therefore, firmly within the sphere where an individual state is free to adopt its own procedural solution to the problem.
39. The reference in the Beijing rules to the mode of disposal is merely a reflection of the fact that among the signatory states there is no commonly accepted age at which a person ceases to be a juvenile and becomes an adult for the purposes of the various national court systems. One therefore has to focus upon the terms of the domestic legislation. The purpose underlying section 49 is the protection of the welfare of children and young persons. It is a detailed application - protecting young people from the adverse consequences of publicity - of the general principle which is expressed in section 44 of the Act (see above). See also paragraph 93 of the judgment of Lord Phillips, Master of the Rolls, in the case of Re S [2003] EWCA Civ 963. Having set out the terms of (inter alia) section 39 of the Act, the Master of the Rolls said this:

"These provisions may, incidentally, assist the due administration of justice by, for instance, making young witnesses more ready to give evidence. Their primary object is, however, plainly to protect the young, including defendants in criminal cases, from the adverse consequences of publicity in respect of court proceedings in which they are involved."

40. The purpose underlying section 49 is not, in my judgment, to protect the interests of young persons once they have ceased to be such and have become adults. A purposive interpretation of section 49(1) would therefore lead one to the conclusion that any restriction on reporting applies only for so long as the person concerned in the proceedings continues to be a young person as defined in the Act.
41. Setting aside for one moment Articles 6 and 10 of the Convention, in domestic law section 49 is a restriction upon the general right to report court proceedings. Moreover, it creates a criminal offence. For these reasons it should be narrowly construed with any ambiguity being resolved in favour of maintaining the general freedom to report court proceedings. I am not persuaded that the references to the amendments proposed to be made by the 1999 Act are of any assistance in construing section 49 as presently enacted. There is nothing to indicate that these amendments are anything other than an attempt to introduce consistency of phraseology into what will be a new and comprehensive code dealing with reporting restrictions insofar as they affect children and young persons.
42. Returning to the Act itself: The appellant lays emphasis on the word "proceedings". I accept that proceedings begin when the child or young person is first brought before the court, but the restriction upon reporting does not extend to all proceedings in the Youth Court, merely to reporting which will identify any child or young person concerned in such proceedings. Once the person ceases to be a child or young person and becomes an adult, there is no reason to retain that restriction. It requires a strained interpretation of subsection (1)(a) to continue to apply it to a person who is beyond school leaving age: see the reference to "name, address or school".
43. Subsection (49)(1) should not be construed in isolation, but in the context of the remainder of section 49 and of the Act as a whole. The restriction extends to witnesses (see subsection 49(4)). There is no reason to prevent the identification of witnesses once they have become adults. Similarly, in cases dealt with before the adult courts there is no reason to prevent the identification of defendants or witnesses under the power conferred by section 39 once they have turned 18.
44. The appellant's approach to subsection 49(1) requires a strained approach to the interpretation of subsections 49(4A) and (5). Merely because an appellant was a child or young person at the commencement of proceedings, that could not sensibly justify describing him or her as, "a child or young person who has been convicted," for the purposes of (4A). Nor could he or she sensibly be described as a child or young person who is concerned in proceedings for the purposes of subsection (5), or a child or young person who is unlawfully at large (see subsection (5)(b)).
45. The interpretation of subsection 49(1) contended for on behalf of the appellant would leave lacunae in subsections (4A) and (5). They would not apply so as to enable the identification of a person who had become an adult during the course of proceedings before the Youth Court. This difficulty is avoided by the Magistrates' eminently sensible approach to the interpretation of section 49.
46. Finally, I am not persuaded that the Magistrates' interpretation would create any practical difficulty in terms of keeping the age of those concerned in proceedings before Youth Courts under review. So far as defendants are concerned, it will, in practice, be necessary to keep their age under review in any event, for example, for the purposes of passing an appropriate sentence if they are convicted.
47. For all of these reasons I am satisfied that the answer to the question posed by the Magistrates is in the affirmative.
48. LORD JUSTICE BROOKE: The news media are often described as the eyes and ears of the public. For these reasons it is important that so far as reasonably practicable representatives of the media should be able to understand with precision what is and what is not open to them to publish.
49. For these reasons I welcome, for what it is worth, the language of the amendment to section 49(1) of the 1933 Act which is not yet in force. When it is in force everybody will know exactly where they stand, but we have to interpret the law as it is today. Although the present language of section 49(1) lacks the clarity of what is to replace it, I agree with Sullivan J on the conclusion he has reached for the reasons he has given.
50. The appeal is therefore dismissed and the answer to the question posed by the justices in their admirable case is, yes.
51. MR HUDSON: My Lord, I am grateful for that.
52. LORD JUSTICE BROOKE: You do not need any certificates?
53. MR HUDSON: According to your tax office, no we do not.
54. MR PLOWDEN: My Lord, there is one matter, I do apologise. There is a section 11 order --
55. LORD JUSTICE BROOKE: Yes, I noted that. We are being asked to consider, at the end of the hearing, the order imposed by Maurice Kay J on 8th July and thereafter renewed: it is no longer in place.
56. MR PLOWDEN: My Lord, I am most grateful.