Brian Aitken, editor of the Newcastle-based Trinity Mirror group paper The Journal, is appealing against the decision by a District Judge at Newcastle Magistrates’ Court that, as the editor, he could be prosecuted under the terms of section 39 (2) of the Children and Young Persons Act 1933.
Mr Aitken, left, was fined £1,600 after the Journal published a story which named a school worker accused of sexual offences involving one of the pupils at the school – and included the name of the school in the story.
Although the alleged victim was already entitled to lifelong anonymity because it was a sexual offence, the court hearing the case made an order under section 39 of the 1933 Act prohibiting publication of any report which included the name, address, school or other details “calculated to lead to the identification, of any child or young person concerned in the proceedings”.
The appeal launched by Mr Aitken – who, as his trial in October was told, was completely unaware at the time that the section 39 order had been made – is based on the interpretation of section 39 (2) by District Judge Stephen Earle at a hearing in Newcastle on October 27.
Alex Bailin QC, for Mr Aitken, had argued that he should not have been prosecuted because section 39 (2) specifies that the liability for breaching an order is borne by “any person who publishes any matter in contravention of an order”.
The phrase “any person who publishes” meant the publisher, Mr Bailin told the court – and while Mr Aitken was the editor, he was not the newspaper’s publisher, which was NCJ Media Ltd.
He also contrasted sections 39 and 49 of the Act, pointing out that Parliament had amended section 49 three times. The amendments had included changing the details of who was liable to prosecution for a breach from “any person” to specify that, in relation to a newspaper, those who could be prosecuted were the “proprietor, editor or publisher”.
But Parliament had left section 39 (2) unchanged, except to amend the penalty from the original £50 to Level 5 on the Standard Scale, currently £5,000.
The failure to amend the details of those liable to prosecution for breaching a section 39 order, Mr Bailin argued, meant that the list was restricted to the actual publisher of the material.
Christina Michalos, for the prosecution, had argued that the effect of the amendment to section 49 (2) was to restrict the range of people who could face prosecution.
The appeal is likely to hinge on this point – and to highlight the principle that legislation must be given a restrictive interpretation, particularly when there might be any ambiguity, which, in criminal cases, must resolved in favour of the defendant.
During the October hearing – at which Mr Aitken pleaded guilty only after District Judge Earle rejected the argument over the interpretation of the legislation – The Journal’s publisher, NCJ Media Ltd, also admitted breaching the order. It was fined £2,160 on that charge, fined a further £2,160 in respect of a similar publication in the Journal’s sister newspaper, the Chronicle, and ordered to pay costs.