Aitken v Director of Public Prosecutions

The expression “any person who publishes” in section 39(2) of the Children and Young Persons Act 1933 is not confined to the commercial publisher of a newspaper. It may include an editor or journalist whose conduct on the particular occasion amounts to publication of the prohibited matter. The provision must be construed according to its ordinary meaning and in the context of the established common law understanding that responsibility for publication may attach to a range of participants. The criminal nature of the provision requires a conservative construction, but does not justify adding words which Parliament did not enact. The prosecution must prove that the defendant’s conduct amounted to publication of the matter contravening the reporting restriction.

The claimant, editor of a regional newspaper, was prosecuted under section 39(2) of the Children and Young Persons Act 1933 after his newspaper published material identifying a young person in breach of a magistrates’ reporting restriction. The publishing company pleaded guilty. The claimant initially argued before the District Judge that an editor was outside the statutory expression “any person who publishes”. That argument was rejected, following which he pleaded guilty and was fined. The District Judge stated the question for the opinion of the Administrative Court. The issue was whether section 39(2) included the editor of a newspaper that published material contrary to a section 39(1) order.

1. The appeal was dismissed. The editor of a newspaper did not, as a matter of law, fall outside the expression “any person who publishes” in section 39(2) of the Children and Young Persons Act 1933.

2. The starting point was the ordinary and natural meaning of the statutory words. “Any person who publishes” was inclusive. It referred to any natural or legal person whose participation in the process was such that it could properly be said that the person published the matter contravening the direction. The expression was not synonymous with “commercial publisher”.

3. The common law context supported that construction. By 1933, responsibility for publication in newspaper publishing could attach to a broad range of participants, including editors and proprietors. The statutory wording had to be understood against that background.

4. The later amendment of section 49 in 1994 did not determine the meaning of section 39. It reflected a policy of limiting liability under section 49 to specified sub-groups, but did not show that editors had previously been outside section 39(2). Parliamentary silence or inactivity in relation to section 39 provided no sufficient basis for the claimant’s construction.

5. The criminal nature of the offence required a conservative construction. Nevertheless, the meaning of section 39(2) was sufficiently clear for the rule against doubtful penalisation to have no application. The prosecution still had to prove beyond reasonable doubt that the defendant’s conduct on the particular occasion amounted to publication of the prohibited matter.

6. The court added that the statutory reporting-restriction regime remained incoherent in several respects, including the absence of a due diligence defence under section 39 and discrepancies between criminal and civil proceedings. Those matters were suitable for Parliament’s attention.

The District Judge rejected the claimant’s statutory-construction argument and sentenced him after his guilty plea. The Administrative Court dismissed the appeal by case stated.