JC & Anor v The Central Criminal Court

An order under Children and Young Persons Act 1933, section 39, protecting the identity of a child or young person concerned in criminal proceedings cannot continue after that person reaches 18. The protection is directed principally to publicity during youth and the currency of proceedings. Section 39 does not provide lifelong anonymity or require the court to read such protection into the statute through human-rights principles. The different statutory treatment of adult witnesses and young persons exposes a legislative gap, particularly for victims and witnesses, but that gap must be addressed by Parliament. A Divisional Court should ordinarily follow an earlier decision of another Divisional Court unless it is clearly wrong, and departure will be rare.

JC and RT, both aged 17 when charged, pleaded guilty at the Central Criminal Court to offences involving explosive substances. The Recorder made orders under section 39 of the Children and Young Persons Act 1933 restricting publication of identifying details, but held that the orders would expire when each claimant reached 18.

After a co-defendant required a retrial, the claimants sought judicial review, arguing that the orders were indefinite. The Crown Prosecution Service, the BBC and an intervening charity addressed the wider implications for defendants, victims and witnesses. The central issue was whether section 39 protection automatically ends at the age of majority.

1. The claim was dismissed. The Recorder had correctly held that a section 39 order cannot extend to reports of proceedings after the protected person reaches 18. Permission to appeal was refused.
2. The statutory purpose was to protect children and young persons from the burden of contemporaneous publicity during youth, not to protect adults from later publication of criminal conduct occurring while they were under 18. Section 39 applies to defendants, victims and witnesses, whose interests may differ materially.
3. The court followed the approach in T v DPP & North East Press [2003] EWHC 2408 (Admin), and held that the views expressed in R (ex parte W, B & C) v Central Criminal Court [2001] Cr App R 2 could not be regarded as clearly wrong. The fact that the earlier observation may have been obiter did not justify rejecting the established approach.
4. The provisions of the Youth Justice and Criminal Evidence Act 1999 did not support a different construction. Section 45 was intended to replace section 39 in criminal proceedings but, like section 39, would protect only persons under 18. Section 46 provides potentially lifelong protection for qualifying adult witnesses, revealing a legislative lacuna rather than a basis for judicial legislation.
5. Articles 8 and 10 of the ECHR did not require section 39 to be read expansively. Section 39 confers a discretion on the judge, who balances those rights at and immediately after trial. Section 3 of the Human Rights Act 1998 therefore provided no reason to read words into or out of section 39.
6. The lack of suitable lifelong protection for some victims and witnesses was unsatisfactory and required urgent legislative attention. The court considered it inappropriate to create a general solution from legislation that did not distinguish between defendants, victims and witnesses.

The claimants were ordered to pay the BBC’s reasonably incurred costs, subject to the statutory costs provisions and detailed assessment.

This was a first-instance judicial review in the Divisional Court of the Queen’s Bench Division. The court upheld the Recorder of London’s ruling that the section 39 orders expired when the claimants reached 18.