JC & RT, R (On the Application Of) v The Central Criminal Court & Ors

An anonymity direction under section 39 of the Children and Young Persons Act 1933 protects its subject only while that person remains a child or young person. It expires automatically on the subject’s 18th birthday, unless previously revoked.

The expression concerned in the proceedings identifies eligibility when the direction is made. It does not cause the direction to expire when proceedings end; it continues until the subject reaches 18. Neither the balancing of rights under articles 8 and 10 nor unincorporated international instruments permits a court to enlarge the unambiguous statutory protection into lifelong anonymity for adults. Any such power must be conferred by Parliament.

JC and RT were 17 when they faced criminal proceedings at the Central Criminal Court. The Recorder of London made a section 39 reporting-restriction order protecting their identities. After they received community sentences, he ruled that the order would expire automatically on each appellant’s 18th birthday.

When a co-defendant was retried after both appellants had turned 18, their earlier involvement became relevant to that trial. They sought judicial review of the Recorder’s ruling. The Divisional Court held that the order expired at 18: [2014] EWHC 1041 (Admin); [2014] 2 Cr App R 13. JC and RT appealed, contending that the original order endured indefinitely unless revoked.

The central issue was whether section 39 of the Children and Young Persons Act 1933 permits anonymity to continue after the protected person reaches adulthood.

1. Appeal dismissed. Laws LJ gave the reasons, with which King LJ and Moore-Bick LJ agreed. A direction under section 39 of the Children and Young Persons Act 1933 expires automatically when its subject turns 18.

2. The statutory subject of the prohibition is a child or young person. That description fixes the direction’s temporal reach. Once the individual is no longer a child or young person, the direction is spent. The words concerned in the proceedings identify a characteristic required when the order is made. They do not make the order expire when proceedings end. A valid order may therefore continue after the proceedings have ended, but only until the subject reaches 18, unless revoked.

3. The provision’s purpose is to protect children and young persons from the harmful effects of publicity during their minority. It is not directed to protecting adults or to promoting the rehabilitation of young offenders. That conclusion was reinforced by section 39(2), which creates a criminal offence and calls for conservative construction.

4. The court applied the article 8/article 10 balancing principles stated in Re S, [2005] 1 AC 593. The factual context and the differing interests of defendants, victims and witnesses were important. However, those rights, open justice, and proportionality could not justify a strained construction which would create lifelong protection. The common law might in an appropriate case afford separate protection, but it imposed a high threshold and did not alter section 39.

5. Unincorporated international instruments could assist only if the domestic provision were ambiguous. Section 39 was unambiguous. The court therefore held that any discretion to extend statutory anonymity into adulthood required legislation. The Divisional Court’s decision was affirmed.

• Court of Appeal (Civil Division) — dismissed the appeal and affirmed that the section 39 order expired on each appellant’s 18th birthday: [2014] EWCA Civ 1777.
• High Court, Queen’s Bench Division, Administrative Court (Divisional Court) — held that a section 39 order under the Children and Young Persons Act 1933 expired when the protected young person reached 18: [2014] EWHC 1041 (Admin); [2014] 2 Cr App R 13.