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Law Column: Law is now clear on Section 39

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A couple of weeks ago, one of my colleagues wrote a column that discussed anonymity for defendants who are under the age of 18.

As you will know from having read her column, where a minor is tried in the Magistrates’ Court or the Crown Court anonymity can be granted under Section 39 of the Children and Young Persons Act 1933 (a “S.39 Order”).

In her article, my colleague explained that such S.39 Orders can be challenged and lifted but in any event, once the subject of a S.39 Order turns 18, the anonymity is automatically lifted and the subject can be named lawfully.

This analysis of the law was supported by last week’s decision in the case of JC and RT. These defendants tried to overturn an earlier judgment of Sir Brian Leveson who had said “An order made by any court under section 39 of the Children and Young Persons Act 1933 cannot extend to reports of the proceedings after the subject of the order has reached the age of majority at 18.”

Sir Brian’s decision was the subject of an appeal by lawyers for JC and RT who sought to overturn his decision in the Court of Appeal, and maintain their clients’ anonymity under the S.39 Order.

To give you a bit of context to the case, JC and RT were both aged 17 when they initially appeared at the Old Bailey alongside a third defendant, to answer charges of offences under the Terrorism Act 2000, amongst others. At first instance, the teenagers were made the subject of a S.39 Order.

The two teenagers pleaded guilty to possession of explosives but the third defendant, later named as Michael Piggin, maintained his innocence. Piggin’s trial later collapsed due to the jury’s inability to agree a verdict and consequently, a retrial was ordered in which JC and RT would feature as witnesses.

By the time the retrial commenced all three of the defendants had turned 18 and the protection offered by S.39 had expired. Lawyers for JC and RT argued that their clients’ remained entitled to protection under the S.39 Order. The basis for their arguments was that the purpose of the legislation was not only to protect the identities of victims and witnesses under the age of 18, but also to aid the rehabilitation of juvenile offenders by allowing them to make a fresh start in their adult lives, free from any association with their past criminality. This argument was rejected and the lawyers sought a Judicial Review of this decision.

Following Sir Brian Leveson’s decision at the Judicial Review hearing, the legal team acting on behalf of JC and RT took the matter to the Court of Appeal. At a hearing late last week, the three presiding judges unanimously upheld Sir Brian’s decision, dismissing the claims from the two teenagers that they were legally entitled to maintain their anonymity beyond the age of 18.

In delivering his decision, Lord Justice Moore-Bick stated:

“I am satisfied the purpose of section 39 is not to promote rehabilitation of young offenders but to protect children and young persons who are caught up in legal proceedings from the adverse effects of publicity to which they might otherwise be exposed…An order made under section 39 is effective only during the minority of the person in respect of whom it is made and expires automatically on his or her 18th birthday.”

It is not yet known whether or not JC and RT will pursue this matter to the Supreme Court, and in the meantime the Court of Appeal judges have agreed that JC and RT can maintain their anonymity until a decision is made.

So, what does this mean for publishers?

Well, it means for the time being at least, nothing has changed. The law is clear that S.39 Orders automatically expire upon the subject of the Order turning 18.