Jolleys (Ex Parte Press Association), R v

Section 39(1) of the Children and Young Persons Act 1933 protects only a child or young person who is concerned in proceedings in one of the statutory capacities. In criminal proceedings, that means a complainant, defendant, victim or witness. It does not extend to a child merely affected by publicity about a parent’s trial.

A reporting restriction is a derogation from open justice. The person seeking it must justify it by clear and cogent evidence, and an affected member of the press must have an opportunity to make representations. Any order must remain within the statutory language and scope.

During the trial of Robert Jolleys at Swindon Crown Court for offences concerning claims for school fees, the Recorder made a reporting-restriction order under section 39 of the Children and Young Persons Act 1933. The order purported to prohibit media identification of Jolleys’s youngest son, who attended the school but was neither a witness nor a person against, by or in respect of whom the proceedings were taken.

The Press Association appealed under section 159 of the Criminal Justice Act 1988. It challenged both the Recorder’s construction of section 39 and the procedure by which the initial order was made without permitting press representations.

The central issue was whether the child was a person concerned in the criminal proceedings for the purposes of section 39(1).

1. Appeal allowed. The court discharged the Recorder’s reporting-restriction order.
2. Section 39(1) of the Children and Young Persons Act 1933 exhaustively defines a child or young person who is concerned in proceedings. In a criminal case, the provision covers a complainant, defendant, victim or witness. It does not cover a child simply because publicity about the proceedings may adversely affect him. The Recorder therefore had no power under section 39 to protect the defendant’s son.
3. This construction was reinforced by Re S (A Child) (Identification: Restrictions on Publication) [2005] AC 593 and by Re Trinity Mirror and others (A and another intervening) [2008] EWCA Crim 50. The court also rejected any suggestion that a desirable or convenient objective could found an inherent jurisdiction to restrain reporting.
4. Independently, the Recorder had failed to comply with Rule 16 of the Criminal Procedure Rules. Before imposing a reporting restriction, the court must afford affected persons, including the press, an opportunity to attend or make representations. A departure from open justice must be justified by clear and cogent evidence; the question is whether identification must be restricted, not whether the press needs to identify the person.
5. The order was also expressed too broadly. A section 39 order should use the language of the legislation and cannot generally be framed as a prohibition on all media reporting. Any extension of protection beyond the statutory scheme is a matter for Parliament.

• Court of Appeal (Criminal Division): Allowed the Press Association’s appeal in [2013] EWCA Crim 1135 and discharged the reporting-restriction order.
• Crown Court at Swindon: The Recorder made an order on 16 January 2013, later confirmed on 25 January 2013, purporting to restrict identification of the defendant’s youngest son under section 39 of the Children and Young Persons Act 1933.