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Law Column: Section 39 – still clinging on

footansteylogonewIf there is one piece of law that every reporter knows, it’s S.39 of the Children and Young Persons Act 1933.

After 82 years, you might think that there is little new to report about this venerable piece of legislation. After all, you know what it says – the Court has the discretion to make an order that no report of proceedings may include any material likely to identify anyone under the age of 18 who is involved in those proceedings.

It’s always been one of the fundamentals of the law module of all journalism courses. And if there’s one kind of Court order that reporters regularly challenge, it’s a misconceived S.39 order.

As recently as yesterday, HTFP reported that the Cheddar Valley Gazette had successfully challenged a S.39 order after Taunton Magistrates Court itself admitted that “an error had been made”.

Back in 1999, however, it looked as though the writing was on the wall for this section, when the Youth Justice and Criminal Evidence Act received Royal Assent. S.45 of the 1999 Act contains what appeared at the time to be the replacement for S.39.

But 16 years on, S.45 is still not in force, and there has been no indication from any Government for many a year of any intention to implement it.

But has there been a change of thinking within Parliament and at the Ministry of Justice? I only ask because on February 12th, the Criminal Justice and Courts Act 2015 received Royal Assent.

This new legislation includes three new provisions: first, S.45 of the 1999 Act will be amended to enable the Courts to give lifelong anonymity to victims and witnesses who are under 18 when the criminal proceedings commence: second, S.39 will be updated to apply to all modern platforms for disseminating news, not just newspapers and TV; and third, special provisions will be made so that S.39 will apply to the providers of ‘information society services’ (web and social media to the rest of us).

These changes are not yet in force, and it will be for the Ministry to decide when, if ever, that will happen.

Meanwhile, readers of these fortnightly legal updates will recall that last Autumn, the Court of Appeal firmly rejected arguments put forward by two young gentlemen, identified as only JC and RT, that S.39 orders did not automatically expire on their 18th birthdays, but rather, continued to give them lifelong anonymity.

Last week, the Court of Appeal’s judgment was made public. Lord Justice Laws gave the lead judgment. “The essence of the measure”, he said, “is the prohibition of the identification of a child or young person”. The subject of a S.39 order is the specified child or young person which is why, he said, once that person is no longer a child or young person, “the direction is spent”.

Lord Justice Moore-Bick took a similar approach. He confirmed that S.39 orders can only be made in respect of “children” and “young persons”. He also very firmly rejected giving a totally new interpretation to the section and said that its purpose was not to rehabilitate offenders, but to protect all those who are 17 or under from harmful publicity.

In one sense, this is a case which simply confirms what we already knew. The status quo is preserved.

But if reports in the legal and other press are accurate, this may not be the end of the matter. It seems JC and RT have not given up, and have started fundraising to try to bring an appeal to the Supreme Court. If they succeed in raising enough money to mount a challenge, this may not be the end of the matter – though I can’t help thinking that their prospects of success are not high.

So for the time being, S.39 is alive and well, and will continue to be a staple element of court reporting for the foreseeable future.

But is change afoot? Even without JC and RT trying to revise the law via the courts, the 2015 Act suggests that there has been at least a limited change of thinking by our lawmakers.

But is anything imminent? There you have me – no-one knows. Apart, perhaps, from the mandarins in the Ministry of Justice.