31 October 2014

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Section 39: Law columnist responds to your points

Tuesday’s Law Column on whether Section 39 orders might, in future, mean lifelong anonymity for children or young persons concerned in court proceedings prompted some thought-provoking comments from HTFP readers.

Here, columnist Sam Hancock of media law experts Foot Anstey, pictured,  answers some of the points raised.

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Some interesting questions and points were raised in relation to my article which appeared on HTFP on Tuesday – “Should S.39 orders mean lifelong anonymity?” – so I thought it would be useful (and even interesting!) to continue the discussion.

In response to the article, Paul Durrant noted that S.39 orders are often placed on victims of crimes, and actually S.39 orders not only work to protect the victim’s identity, but by implication also protect the defendant’s identity.

For example, where a parent is accused of non-sexual abuse against their 15 year old child, a S.39 order will often be placed on the victim.  A News editor who wants to run the story is then left with a dilemma – do they name the defendant and omit any detail that would identify the victim of the abuse, for example the fact that the victim  is the defendant’s child? Or do they include the relationship between the victim and the defendant and omit all other identifiers? The decision will often depend on the angle of the story and the particular circumstances.

However, Paul Durrant asked where I think the industry should sit ethically when it comes to identifying victims once they have turned 18, when (under current law) the S.39 order ceases to apply.

The question is not a simple one, and there are any number of possible answers, all of which are valid.

The PCC’s Code of Practice states that “particular regard should be paid to the potentially vulnerable position of children who witness, or are victims of, crime.”  Whilst the same interpretation of S.39 could be applied to this clause, and therefore the reference to “children” would no longer apply once the child reached 18, the Code’s preamble specifically states that it should be honoured not just to the letter, but also in spirit.

Of course, the press are also under constant scrutiny and are expected to act ethically at all times.  You only have to look at the way in which many complainants refer to the Leveson report to detect a shift in public opinion.

On the other hand, our traditions and laws are framed around the concept of open justice for adult defendants, witnesses, and victims, principles from which there should only be a departure in the most exceptional circumstances.

So my answer to the question posed by Paul Durrant is equivocal – “it depends”.  It depends on the case, the facts, the circumstances of those involved.  Not entirely satisfactory, I know, but true nevertheless, I think.

The provisions of the Rehabilitation of Offenders Act 1974 should also be noted in relation to the expiry of S.39 orders.

Under the Act, the rehabilitation period for young offenders is specifically stated to be half that of their adult counterparts. Therefore, thought needs to be given before revisiting a conviction a few years on when the S.39 order or orders no longer apply.

As pointed out by unionman in relation to Tuesday’s article, this helps the argument that S.39 orders do not need to apply indefinitely, because the Act helps offenders who are children or young persons to put their past behind them, without the need for an indefinite S.39 order.

However, interestingly, in the current judicial review application that relates to S.39, Counsel for the claimants argues that the provisions in the Act demonstrate Parliament’s intention to allow young offenders to leave their past behind them, which they argue, in the “internet age” is undermined by the S.39 order ending when the subject becomes 18.

I am sure the S.39 debate will rumble on, and I will let you have updates on the progress of the application for judicial review in due course.  It looks like we are all awaiting the outcome with bated breath.

1 Comment

  1. paul durrant

    Thanks for the prompt reply, Sam. (I might have known you lawyers would come up with a “on the one hand, on the other…” answer!)

    The only thing I’d throw back into the pot is that the Code of Practice clause you quote (Clause 9, reporting crime) goes on to say “This should not restrict the right to report legal proceedings”. So the question remains whether revisiting and reporting a court case two or three years on would still qualify as the “right to report legal proceedings”.

    Also, Clause 9 is subject to the public interest test. So if you were unable, or chose not to, identify a defendant at the time because of a s39 on a child, would the public interest now be served by naming “the guilty man”?

    Of course sex cases are a totally different kettle of fish. In those circumstances, the Code is clear we should name the defendant and top and tail the copy accordingly, leaving out the juicy details.

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