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Law Column: Erroneous S39 order sparks discussion

footansteylogonewI know that many of the recent Law Columns have centred on S.39 orders and so whilst it is unusual to revisit a topic quite so frequently, as it remains a very topical issue, here we go again!

Last Friday’s HTFP story concerning the Mid Devon Gazette’s reporting into the tragic death of Samuel Crocker in Crediton last week provoked discussion amongst readers around the “erroneous” nature of the S.39 order issued by magistrates.

As reported, editor, Patrick Phelvin and I had a discussion about the validity of the order and what the Gazette should do until such time as it was lifted, whether that was by the court on its own initiative or as a result of a challenge brought by the press.

In response to the article, Idle Rich questioned what the legal consequences would have been if the Gazette had simply ignored the Order on the basis that it was wrong and gone ahead and published the identity of Samuel anyway.

CreditonIn order to answer Idle Rich’s question properly, we have to revisit some old and well-trodden ground…

As we all know, the purpose of a S.39 order is to protect the identity of a child or young person concerned in proceedings and it therefore follows that such orders cannot provide anonymity to those who are over the age of 18 or to children that have sadly died. However, S.39 orders are not automatic and so whether or not such an order is made will depend upon the understanding of the magistrate or judge in question.

We’ve all seen, on many occasions, orders that have been made that are lacking in any legal propriety. A very clear example of such an order was present in the Gazette’s case. It would seem logical that if an order was made but that it didn’t comply with the necessary requirements set out in the related statute then surely that order should be void and the case free to be reported as if the order had never existed…

Unfortunately, the answer is not so obvious. The legal position is that any court order, even one that is invalidly made, remains enforceable as a court order until it is lifted unless stated otherwise. In a case involving Al Jazeera in 2002, Eady J said that while an order exists, everyone who it applies to, and who knows it exists, is under an obligation to obey it even if they believe it to be invalid and even if that belief is actually correct. In such circumstances, the answer is to put the issue before a court, not to decide it yourself.

As David Scott rightly commented in response to the Gazette story, by defying any court order, regardless of whether you would bet the house on it not being legally enforceable, you put yourself in the hands of the magistrates on the day and despite the fact that there is an abundance of advice available to magistrates to assist them in interpreting the statute it’s still a big gamble to take.

So the short answer to Idle Rich’s question is that breaching such an order, whether deliberately or otherwise, is still classified as a breach for the purposes of S.39 and you could face a severe penalty – a fine of up to £5,000 each for the author, the publisher and the proprietor. Now, it’s impossible to say whether or not the authorities would actually go through with a prosecution against an editor or publisher that was based on such shaky ground but no one wants to be the test case…

For now, I’m sure that the debate surrounding S.39 will continue and this won’t be the last Law Column that you see on the subject!

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  • March 20, 2015 at 6:40 am

    Thanks for this, Tony. In your provincial practice are these s39 problems proliferating and are cash-strapped local editors willing to pay to have legal points argued?

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