R (on the application of JC & RT) v Central Criminal Court, Court of Appeal  EWCA Civ 1777
On appeal from the High Court, R (on the application of JC & RT) v Central Criminal Court  EWHC 1041 (QB).
The judgment of the Court of Appeal rejecting the appeal of JC and RT states that any section 39 order imposing reporting restrictions for children involved in criminal proceedings will “expire” on the recipient’s 18th birthday.
JC and RT were charged with possessing an explosive substance, along with a third male. JC and RT both pleaded guilty and were sentenced when they were both 17 years old. The Recorder of London made orders in respect of both of them under section 39 Children and Young Persons Act 1933, prohibiting their identification.
JC and RT’s co-defendant pleaded not guilty. When his matter came to trial all three had reached the age of 18, and the media, reporting on his trial, sought to name all three of them. JC and RT argued that the section 39 orders should continue to protect their anonymity despite their having reached the age of majority. The Recorder of London disagreed. The matter was challenged by way of judicial review, with Just for Kids Law intervening, but the court’s decision was upheld by the High Court and the Court of Appeal.
Both the High Court and the Court of Appeal were critical of the current legislation. There is currently draft legislation (section 77 Criminal Justice and Courts Bill) which would allow courts to grant life long anonymity to victims or witnesses in a narrow range of circumstances, but allows the court no discretion to grant this to defendants. See the draft legislation here.
This case has a wide impact as it presumably also applies to orders made under section 49 Children and Young Persons Act 1933, although this is not specifically dealt with in the judgment.
Whilst previous judgements have also suggested that section 39 orders may expire once a child reaches 18, such remarks have largely been obiter. There is concern that such a conclusive interpretation of section 39 by the Court of Appeal may encourage the press to name more individuals whose identities were protected as children. The BBC was an interested party in the case, and argued for the naming of JC and RT, and for a narrow interpretation of section 39.
The appellants argued that, when looking at the best interests of the child, the court should consider that a child who knows their identity may be revealed when they turn 18 may be disturbed by that knowledge, and so it impacts on the welfare of that individual whilst they are a child. Lord Justice Laws, in giving the judgment of the court, roundly rejected that argument, stating that the impact of publication of an individual’s name once an adult could not be relevant when considering their welfare as a child.
Other arguments in favour of a wider interpretation of section 39 were met with some sympathy by the court, which accepted that there “may be strong arguments” for a provision allowing courts to make such orders indefinitely (at paragraph 46). However the judgment of the court was that this is a matter for parliament, and that a proper construction of section 39 is that reporting restrictions automatically expire on the individual’s 18th birthday.
Their Lordships determined that this was the correct construction based on the words used in the Act, stating at paragraph 21 that the “essence of the measure is the prohibition of identity of a child or young person” and that the “temporal reach” of the measure is therefore “fixed by the description of the subject”. Further they found that, given breach of a section 39 order has a criminal sanction, the Act should be construed “conservatively unless there is a pressing greater imperative” (at paragraph 24). Finally they rejected the submission that they should consider an individual’s right to privacy under the European Convention to interpret the Act, stating that there are competing rights in such cases (Article 8 and Article 10) and that to so interpret section 39 would give too great a weight to Article 8, which may not be appropriate in each case.
This case may be further appealed. The interpretation of the Act by the Court of Appeal may cause concern for many individuals. Whilst it is open to any individual to apply to court for an injunction to prevent publicity in a case, the legal test for such an injunction is a high one, and it requires the individual to know that they are about to be named, and how to take proactive steps to prevent it. On the other hand, if a section 39 order automatically lasted for life, there is nothing to prevent the press from applying to the court for it be lifted at any stage, if they felt that the public interest arguments outweighed the rights of the individual.
Just for Kids Law acted as interveners in this case.