23 October 2014

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Law Column: S39 is alive and well – and thriving in Loughborough

On Tuesday, the Court of Appeal handed down a judgment which confirmed that Section 39 Orders expire when the young person who is the subject of the Order turns 18.

No big surprise there, you may say.  After all, this is how S.39 of the Children &Young Persons Act has been interpreted by journalists, judges, and media lawyers for years.

Those of us of a certain age will remember how, more than a decade ago, notorious and prolific youth criminals (including safari boy and pyjama boy) regularly had their 18th birthdays celebrated by being named and shamed in their local papers.

In one sense, this case was no different.  Two youths from Loughborough were charged with serious explosives offences, whilst the third was charged with terrorism offences.  Before the end of his trial, the third defendant turned 18 and was duly named (one Michael Piggin, since you ask).  The other two defendants pleaded guilty to the explosives charges, and were made the subject of S.39 Orders.

So the question was simple: could they be named when they turned 18?

Well, the answer is obviously yes – isn’t it?

But the youths, through their QC, came up with an argument which the judges said no-one has ever argued before.  The Defendants said that the law is, or rather should be, that if a Defendant is a young person, he is always a young person for the purposes of S.39, and so is entitled to lifelong anonymity.

Or to summarise the President of the Court of Appeal (a certain Sir Brian Leveson, remember him?): the Defendants claimed that the previous convictions of an adult defendant recorded prior to his 18th birthday should not be published simply because he has turned 18. These Defendants, the judge said, were asserting that youths should be allowed to leave their pasts behind them, because the purpose of the legislation is to support the rehabilitation of child and youth offenders.

Lord Justice Leveson rejected these arguments in clear and unequivocal terms.  After carrying out a thorough review of the history of S.39, and examining how other countries deal with the reporting of child and youth criminals, he declared that S.39 Orders do indeed expire on a Defendant’s 18th birthday: “An order made by any Court under S.39 cannot extend to reports of proceedings after the subject of the order has reached the age of 18″.

So there we have it – the law is just as we have always understood it to be.

However, Sir Brian concluded his judgment by saying that he does not consider the current state of affairs to be satisfactory.  Whilst he said that to construe S.39 so as to give lifelong anonymity to young Defendants would be a step too far, he conceded that powerful arguments had been raised by counsel for these particular Defendants and the CPS.  Certain types of victims and witnesses, he said, need “individual and tailor-made protection“.

And for this reason, Leveson LJ called on Parliament to “fashion a solution” because “the problem requires to be addressed as a
matter of real urgency”
.

So watch this space.  If Parliament heeds Sir Brian’s call to fashion a solution, we may well face further restrictions on the principle of open justice.

But such changes take time, and in the absence of any political or legal will to change the law, it’s business as usual when it comes to reporting cases involving under-age defendants, witnesses, and victims.

1 Comment

  1. davy gravy, london

    Fascinating article by Tony actually. Newspapers quite rightly would normally argue passionately in favour of naming those convicted of crimes. But what about a young person who commits a crime when he’s say, 10, and therefore just old enough to be a criminal. You could argue he’s in more need of anonymity on his 18th birthday than someone who commits a similar crime at the age of 17 years and 11 months.

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