R (Gazette Media) v Teeside Crown Court
Reference:  EWCA Crim 1983;  EMLR 832; The Times, 8 August 2005
Court: Court of Appeal (Criminal Division)
Judge: Maurice Kay LJ, Field J and Sir John Alliott
Date of judgment: 26 Jul 2005
Summary: Reporting Restrictions - Children - s.39 Children and Young Persons Act 1933 - Proper scope of order - Appeals - s.159 Criminal Justice Act 1988 - Sexual offences - Automatic restrictions - s.1(2) Sexual Offences (Amendment) Act 1992
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Two men, S and L, were being prosecuted for offences contrary to s.1 of the Protection of Children Act 1978 and for conspiracy to rape. S had electronically sent L photos of his 11 year-old daughter and had arranged for L to have sex with her. An order was made under s.39 of the Children and Young Persons Act 1933 prohibiting the identification of S, the nature of the case against him, the daughter, or any circumstances that may lead to her identification. S and L were both convicted and sentenced to terms of imprisonment. Solicitors for the media contacted the Recorder who had made the order to complain about its wording, but it was indicated that he would not reopen the matter. Three media companies applied to the Court of Appeal under s.159 of the Criminal Justice Act 1988 for the order to be quashed.
(1) Whether the order made went beyond that permissible under s.39 Children and Young Persons Act 1933; (2) If so, how it should be modified.
Allowing the appeal and quashing the order: (1) It was common ground that the order went beyond what was permissible under s.39. Following Ex parte Godwin  1 QB 190, an embargo on the identification of S and of the nature of the case against him could not lawfully be included in the order. The Attorney General’s submission that since the Human Rights Act 1998 a prohibition on the naming of a defendant was permissible under the provision was rejected. (2) The submission on the part of the media that any order was unnecessary due to s.1(2) of the Sexual Offences (Amendment) Act 1992 was rejected. That Act did not apply to offences under the Protection of Children Act 1978. Instead, a new s.39 order in conventional Godwin terms was made.
Unusually, the Court chose to comment that they considered that newspapers that had named S and referred to his daughter as “an 11-year old schoolgirl” may not in the circumstances have avoided a properly made s.39 order or the 1992 Act. Given the nature of the crime it was quite likely that the daughter would be identified. The Court also said, in strong terms, that it regretted the restrictions and uncertainty caused by the Godwin decision, and was not convinced that the move away from orders and towards automatic restrictions in criminal trials would be effective in protecting children.