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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1777.html
Cite as: [2014] EWCA Civ 1777, [2015] 1 WLR 2865, 179 JP 205, [2015] WLR 2865, (2015) 179 JP 205

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Neutral Citation Number: [2014] EWCA Civ 1777
Case No. C1/2014/1375

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT
(LORD JUSTICE LEVESON, MR JUSTICE HOLROYDE
AND MR JUSTICE CRANSTON)

Royal Courts of Justice
Strand
London, WC2A 2LL
20 November 2014

B e f o r e :

LORD JUSTICE MOORE-BICK
LORD JUSTICE LAWS
LADY JUSTICE KING

____________________

THE QUEEN ON THE APPLICATION OF JC AND RT Appellants
-v-
THE CENTRAL CRIMINAL COURT
THE CROWN PROSECUTION SERVICE Respondents
BRITISH BROADCASTING CORPORATION Interested Party
JUST FOR KIDS Intervener

____________________

(Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr J Bennathan QC and Ms M Roche (instructed by Straw & Pearce) appeared on behalf of the Appellants
Mr M Hill QC (instructed by the Crown Prosecution Service) appeared on behalf of the Respondents
Mr G Millar (instructed by the BBC Litigation Department) appeared on behalf of the Interested Party
Mr Ian Wise QC (instructed by Just for Kids Law) appeared on behalf of the Intervener

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. 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?
  2. 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.
  3. Section 39 provides:
  4. "(1)In relation to any proceedings in any court, the court may direct that—
    (a)no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein:
    (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 in so far (if at all) as may be permitted by the direction of the court."
  5. The term 'young person' is someone who has attained the age of 14 but not 18 (section 107 of the 1933 Act).
  6. The facts are described in the President's judgment in the court below as follows:
  7. "2. A third defendant, also 17 years of age, admitted similar offences but faced more serious charges, including under the Terrorism Act 2000 in respect of which he was tried. All three had the benefit of an order under s 39 of the 1933 Act restricting any newspaper or broadcast media outlet from reporting the name, address, school or other identifying particulars that might identify them: this order had been made by the Recorder of London at an earlier hearing.
    3. After the pleas of JC and RT had been accepted, the Recorder heard argument as to whether the s 39 order should continue. He considered that the seriousness of the additional charges against the third defendant meant that he could be named after verdicts of the jury but that the order in relation to the two who had pleaded guilty should continue. He commented that the order in respect of each young man would automatically expire when he became 18.
    4. The trial then proceeded against the third defendant alone but the jury could not agree on verdicts and a retrial was ordered. In that event, and having regard to all the circumstances, the Recorder proceeded to sentence JC and RT and, in each case, imposed a community penalty. At the same time, he heard argument as to the effect of the s 39 order whereupon he held that, as a matter of law and without reconsideration of the facts, the section properly construed provided that the November order would indeed expire on their respective 18 birthdays.
    5. By the time of the retrial, all three defendants had, in fact, attained that age. The third defendant, then facing his re-trial, has been named as Michael Piggin: he is over 18 and a defendant in a criminal trial and there was no basis upon which his identity was entitled to protection. As for JC and RT, whose involvement with Michael Piggin was relevant to the latter's trial, they seek to argue that they remain entitled to the protection of the 1933 Act. They thus seek judicial review of the decision of the Recorder that the order expired on their 18 birthdays. On 25 February 2014, permission was granted by Goldring LJ and Ouseley J who gave directions which included reporting restrictions on the claimants' identities pending the hearing of the claim. JC and RT are supported by a charity, Just for Kids Law, who have been given leave to intervene. The BBC (supported by other media organisations, in particular, the press) oppose the application. Although initially neutral, the Crown Prosecution Service ('CPS') has become concerned about the impact of the Recorder's decision on victims and witnesses: their submissions, therefore, pointed to the difficulties of the ruling."
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. Section 49 of the 1933 Act applies, primarily at least, to proceedings in the Youth Court (see section 49(2)). Section 49(1) provides:
  13. "The following prohibitions apply ... 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."
  14. 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:
  15. "For the purposes of this section a reporting direction in relation to a witness is a direction that no matter relating to the witness shall during the witness's lifetime be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings."

    Restrictions ordered under section 46 may include the witness's name, address and some other matters (section 46(7)) subject to certain qualifications (for which see section 46(9) and (10)). A direction lasts for life but does not assist anyone under the age of 18.

  16. 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:
  17. "The court may direct that no matter relating to any person concerned in the proceedings 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 a person concerned in the proceedings."

    The state of affairs is bizarre not only because section 45 has not been brought into force but because of the contrast between sections 46 and 45. S.46 enables protection to be given to adult witnesses; section 45 would enable protection to be given to child defendants but only while they are children or young persons.

  18. 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:
  19. "The only remaining question is whether this Court, should reconstitute itself as a Court of Appeal (Criminal Division), so as itself to make an order for anonymity under section 39 of the Children and Young Persons Act 1933. I have said that the position of W starkly illustrates the difficulties. He is 18 next week. If the Court were to make an order preserving his anonymity, it could only last, in effect, for a week."
  20. 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.
  21. 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:
  22. "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..."

    Then at paragraph 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."

    These observations are not of course obiter vis a vis section 49 but even if, which the appellants by Mr Bennathan QC would certainly contest, they cannot be distinguished on the footing that there are material differences between section 39 and 49, this court is plainly not bound by the Divisional Court.

  23. 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:
  24. "Before leaving the topic of the proper construction of s.97 of the 1989 Act, I should add that I am conscious that the arguments for the restrictive reading which I consider to be appropriate may also be applicable to the broadly similar wording of s.39 of the Children and Young Persons Act 1933 ... which is of course a provision applying to any proceedings in any court and is in wide use in the criminal courts in respect of child victims and witnesses. I do not so hold, as the matter does not arise directly in this appeal and has not been argued before us. Quite apart from any differences in wording, there is in relation to criminal trials no similar restraint upon reporting the detail of the trial to that embodied in s.12 (1) AJA. Thus the effect of permitting a newspaper to report the identity of a child or young person in a case embodying lurid detail as to which there is no restraint on reporting, may have a far more devastating effect on the Article 8 rights of the child concerned. And, even if the imperative of restrictive construction applies to s.39 of the 1933 Act, judges in criminal proceedings will enjoy a power deriving from the child's Convention rights to make orders similar to those made hitherto, provided that the court has considered the question with care in the course of undertaking the requisite balancing exercise between the effect upon the Article 8 rights of the child concerned and the Article 10 rights of the media."
  25. 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:
  26. "First, neither article [he refers to articles 8 and 10 of the European Convention on Human Rights] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
  27. 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.
  28. 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.
  29. I turn to the language of the section. I repeat the operative words for convenience:
  30. "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."
  31. 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.
  32. 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.
  33. 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.
  34. 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.
  35. 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.
  36. 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.
  37. 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:
  38. "That is not to say that I consider the state of affairs to be satisfactory. Mr Bennathan, Mr Wise and Mr Hill raise powerful arguments in relation to victims, witnesses and persons concerned in criminal proceedings (quite apart from the position of defendants). Thus, it is said that there is simply no reason why, at the very least, they should not have similar potential protection to that afforded to adults pursuant to s. 46 of the 1999 Act who, in the circumstances there described, enjoy life-long anonymity. In that regard, the position will be no better if s. 45 of the 1999 Act is brought into force: not only will it not cover the post-18 position of those who, as adults, would have been entitled to an order under s. 46 but, furthermore, it does not extend protection beyond contemporaneous reporting of proceedings by newspapers or broadcasters."
  39. 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.
  40. 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.
  41. 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.
  42. 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.
  43. 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.
  44. The Beijing Rules to which Mr Wise briefly took us cannot with respect advance the matter further.
  45. 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:
  46. "We are not persuaded that the United Nations Convention on the Rights of the Child can be employed to assist the interpretation of section 31 of the 1933 Act, let alone the Beijing Rules, which are not binding in international law ... When these instruments post-date it by some six decades. No Strasbourg right is in contention. Nor has legislation translated the relevant parts of the United Nations Convention or the Beijing Rules into domestic law ... In our view to be tempted down the path Mr Wise QC sign posts would constitute an illegitimate exercise of the legislative function by this court. Section 31 must be interpreted without the assistance of the international instruments he has identified."
  47. 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.
  48. 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.
  49. 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:
  50. "We were constantly informed that young offenders suffer in after life as a result of a conviction, by a court, even though it may have been for a trifling offence, and that it prevented them from entering careers for which they were eminently suited."

    I would not of course quarrel with the sentiment but I cannot see that the expression of that view in the report in 1927 can realistically be regarded as an aid to the construction of the section with which we are concerned.

  51. 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:
  52. "In my judgment, there is considerable force in the view expressed by Sullivan J in North East Press that the purpose of the 1933 Act was to protect young people from publicity during the currency of their youth, and not into adulthood. The glare of publicity arising from contemporaneous reporting of proceedings that themselves are highly stressful is a heavy burden even on adults, and it is sensible that children should usually be protected from that combination. But once the proceedings are over, news reports of proceedings are and always have been less likely and there is no reason to provide the same protection. In my recollection, it has never been suggested that the previous convictions of an adult defendant (or, indeed, witness if that material is admitted) recorded prior to his 18th birthday should not be published because of the 1933 Act. In that regard, it is significant that this point (consequent upon Michael Piggin requiring a re-trial after all three had attained the age of 18 years) has only now arisen for the first time."
  53. 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:
  54. "Contemporaneous reporting of criminal proceedings may well include references to previous convictions of a named adult defendant, arising out of earlier proceedings where the named defendant was the subject of a s.39 order. It is unheard of from a journalist to have to apply for a discharge or variation of the earlier s.39 order simply in order to be able to refer to the defendant's earlier conviction is in the report of the current proceedings. It would be a serious extra burden on court reporters in criminal cases if they had to do this every time this situation arose, or risk criminal sanction. The latter is an obvious risk because it is may not be apparent at the time of the later report that the earlier proceedings were covered by a s.39 order."
  55. 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.
  56. 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:
  57. "These different groups or classes may well have different interests and, in particular, there may well be different justifications and arguments that can be advanced in relation to each."
  58. 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.
  59. 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.
  60. 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.
  61. 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.
  62. 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:
  63. "The question is whether or not Parliament intended to protect adults from possible publication of their criminal conduct when under 18. In that regard, I have no doubt that, whether obiter or not, the views of Rose LJ (in W, B and C) reflected in other decisions and clearly adopted in North East Press, reflecting the law over many decades, cannot possibly be said to be wrong and are rightly to be followed."
  64. 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.
  65. LADY JUSTICE KING: I agree.
  66. 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.
  67. 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.
  68. 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.
  69. 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.
  70. For these reasons, as well as those given by Lord, Lord Justice Laws, I too would dismiss the appeal.


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