Full case report
JC v Central Criminal Court
Reference  EWHC 1041 (QB)
Court High Court (QBD)
Judge Sir Brian Leveson (President QBD), Cranston J, Holroyde J
Date of Judgment 8 Apr 2014
Orders under section 39 Children and Young Persons Act 1933 – expiry on 18th birthday – protection of defendants and witnesses
The Claimants, then aged 17, appeared before the Central Criminal Court charged with offences to which they pleaded guilty. A third individual, also aged 17 admitted similar offences but also faced more serious charges. All three had the benefit of an order under s. 39 Children and Young Persons Act 1933 (“a s.39 order”). The Recorder, on sentencing the Claimants, commented that the s.39 order would expire automatically on their 18th birthdays.
In the event, a re-trial of the third individual was ordered to which the Claimants’ involvement with that individual was relevant. By this time the Claimants had reached the age of 18. The Claimants sought a judicial review of the decision of the Recorder that the s.39 order expired on the 18th birthdays. The Claimants were supported by the charity Just For Kids Law who were given leave to intervene. The BBC (supported by other media organisations) and the CPS made submissions as interested parties.
Did the Recorder err in law when he held that an order under s.39 Children and Young Persons Act 1933 automatically expires when the subject of the order reaches the age of 18?
A s.39 order expires automatically when the subject of the order reaches 18, the Recorder made no error of law. A court cannot extend a s.39 order to cover reports of proceedings after the subject of the order has reached the age of majority.
The purpose of the section was to protect young people from the glare of publicity during their youth. The section equally covers defendants, witnesses and victims, and therefore it cannot be said that rehabilitation of young offenders was one of its purposes. The human rights balancing act between Articles 8 and 10 ECHR has been carried out by the terms of the statute and therefore there is no need to “read down” the provision.
However, there is a lacuna in the law, in that s.46 Youth Justice and Criminal Evidence Act 1999 allows the court to make a reporting restriction lasting indefinitely in respect of a witness aged over 18, but no such protection is available to those under 18. This lacuna would not be resolved if s.45 of that Act were brought into force; it is intended to replace s.39 but it too only extends protection until the subject reaches 18. Leveson P, with whom the other judges agreed, regarded this state of affairs as unsatisfactory:
“Victims and witnesses need individual and tailor-made protections within the criminal justice system…Therefore, it is for Parliament to fashion a solution: the problem requires to be addressed as a matter of urgency.”
The outcome of this case is unsurprising, most understood s.39 orders to automatically end on the 18th birthday of their subject. Of particular interest is the lacuna in the law pointed out by the court, referred to above, which results in victims and witnesses on reaching the age of 18 needing to apply to the High Court for an injunction to protect their interests – something most would seem unlikely to do in practice. Particularly in the light of the current focus on the rights and protections offered to victims and witnesses in criminal trials (see for example the comments of former DPP Sir Kier Starmer) it will be interesting to see how the Government responds to this clear judicial call for legislative action.
Straw & Pearce, Loughborough for C, Crown Prosecution Service for the 1st Interested Party, BBC Litigation Department for the 2nd Interested Party, Just for Kids Law for the Intervener
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