Gazette Media Company Ltd. & Ors, R (on the application of) v Teeside Crown Court

An order under section 39 of the Children and Young Persons Act 1933 must be confined to the statutory terms, or words to the like effect. It cannot impose a general embargo on reporting, expressly prohibit identification of an adult defendant, or restrict reporting of the nature of the case.

Section 3 of the Human Rights Act 1998 does not justify enlarging those statutory restrictions by reference to a child’s Article 8 rights. Article 8 and Article 10 require a fact-specific balance, but primary legislation ordinarily strikes that balance. A valid section 39 order may still be necessary where automatic anonymity under the Sexual Offences (Amendment) Act 1992 does not cover all of the offences before the court.

The Recorder of Middlesborough made a reporting-restriction order under section 39 of the Children and Young Persons Act 1933 during the prosecution of two men for offences involving indecent photographs of a child and conspiracy to rape her. The order prohibited reporting of the proceedings and expressly restricted identification of one defendant and the nature of the case against him.

Three media companies appealed under section 159 of the Criminal Justice Act 1988. The Court of Appeal extended time and granted leave. The Attorney General argued that the order could, after the Human Rights Act 1998, expressly prohibit naming the defendant to protect the child’s Article 8 rights. The central issue was the lawful scope of a section 39 order and whether automatic statutory anonymity made a replacement order unnecessary.

1. Appeal allowed. The Court quashed the Recorder’s order and substituted a conventional section 39 order.

2. Following ex parte Godwin [1992] 1 QB 190, section 39 orders must use the terms of section 39(1) of the Children and Young Persons Act 1933, or words to the same effect, and no more. The Recorder’s general prohibition on reporting the proceedings was unlawful. So too were the express restrictions on identifying the adult defendant and reporting the nature of the case against him.

3. The Court rejected the Attorney General’s submission that section 3 of the Human Rights Act 1998 permitted a wider construction. Applying the approach in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, Article 8 and Article 10 have no automatic priority. In this context, Parliament had struck the relevant balance through the statutory reporting regime. There was no basis for creating a further restriction on freedom of expression beyond the statute as construed in ex parte Godwin.

4. The court also declined to depart from ex parte Godwin by relying on Simpson [2003] EWCA Crim 1499. The construction argument advanced for the Attorney General had already been considered and rejected in ex parte Godwin.

5. Automatic anonymity under section 1 of the Sexual Offences (Amendment) Act 1992 did not make a replacement order superfluous. Although it protected the complainant in relation to the conspiracy-to-rape allegation, it did not apply to the offences under section 1 of the Protection of Children Act 1978. A properly framed section 39 order was therefore required in addition to the 1992 Act protection.

6. As guidance, the Court observed that naming the defendant alongside a description of the victim as an 11-year-old schoolgirl might, in context, amount to publishing particulars calculated to identify the child. That issue remained governed by the statutory wording, notwithstanding the absence of an express prohibition on naming the defendant.

• Court of Appeal (Criminal Division): Allowed the media companies’ appeal under section 159 of the Criminal Justice Act 1988; quashed the reporting-restriction order and substituted a conventional section 39 order.
• Crown Court at Teeside: The Recorder of Middlesborough made the section 39 order on 12 October 2004 during the criminal proceedings.