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Former daily editor loses appeal over Section 39 breach

Brian Aitken Pic

A former daily editor who was fined £1,600 after his paper breached an anonymity order in a child sex case has lost his appeal against his conviction.

Brian Aitken, who edited The Journal in Newcastle, was hit with the fine after he appeared in court last October where he pleaded guilty to breaching a section 39 Order made by a magistrates court.

But he decided to appeal against his conviction and the case went to the Royal Courts of Justice at the end of March.

Judges reserved judgement on the day but yesterday (Thurs) decided to reject his appeal.

Brian’s conviction came about 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, in breach of an order made under the Children and Young Persons Act 1933.

He was unaware at the time of publication that a section 39 order had been made.

Brian’s appeal centred on the interpretation of section 39 (2) by District Judge Stephen Earle at a hearing in Newcastle last October.

At the hearing, Alex Bailin QC, representing Brian, 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”.

Mr Bailin told the court that the phrase “any person who publishes” meant the publisher, and while Brian was the editor, he was not the newspaper’s publisher, which was NCJ Media Ltd.

Brian, who left the newspaper before Christmas, pleaded guilty at the hearing only after District Judge Earle rejected the argument over the interpretation of the legislation.

In yesterday’s judgement, Mr Justice Warby said: “I have asked myself whether there might be a meaningful distinction to be drawn between holding a person responsible for publication and describing them as a ‘person who publishes’.

“However, I do not consider that there is any such distinction, in this legal context.

“In my judgment it is clear that principles of common law which were long-established by 1933 held that editors and, I would add, proprietors were within the range of persons responsible for the publication of what appeared in their newspapers, and who would aptly be described as persons who published such content.”

NCJ Media Ltd, the North-East division of Trinity Mirror which publishes the paper, also admitted breaching the order and was fined £2,160 for that and a further £2,160 in respect of a similar publication in sister title the Chronicle, and was ordered to pay costs.

Trinity Mirror supported Brian in his appeal but did not appeal the conviction or fines imposed on NCJ Media.

The company declined to comment following yesterday’s decision.


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  • April 24, 2015 at 10:26 am

    I was interested to see how this appeal went.
    I think all editors would have sympathy in a ‘there but by the grace of god’ kind of way, in terms of not having known there was an order in place. We all rely on other people to be our eyes and ears.
    But while I’ve every personal sympathy with Brian having this conviction and a large fine to pay, I must say on a professional level I am relieved that it has gone this way.
    To my mind, a huge part of being an editor is that personal responsibility for all aspects of the newspaper. Simply offloading that responsibility onto the publishing companies would have represented a significant downgrading of the role of editor.

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  • April 24, 2015 at 11:57 am

    Brian Aitken wasn’t ‘hit’ with a fine. He was fined! Please… I would have removed this horrible expression from a junior reporter’s copy. Sadly it’s the kind of thing that seems to be encouraged on media courses or at least, not corrected. Don’t expect to see it in a publication for the profession!

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  • April 27, 2015 at 11:59 am

    Isn’t that what editors are supposed to get paid for? Otherwise they’re just pointless management wonks who spend all their time presenting awards and glad-handing the local bigwigs… oh, wait…

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