R v NCJ Media Ltd; R v Aitken
Court: Newcastle Magistrates' Court
Judge: DJ Earl
Date of judgment: 27 Oct 2014
Summary: Reporting restrictions - s.39 Children & Young Persons Act 1933 - breach of court order - contempt
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Christina Michalos QC
Instructing Solicitors: Crown Prosecution Service
A was the editor of newspaper which had published an article concerning a criminal prosecution that named the school attended by a youth victim. The identification of the school was in breach of an order made under s.39 of the Children and Young Persons Act 1933 (CYPA 1933).
Both the publishing company N and A were charged with contravention of a direction under s.39 CYPA 1933 contrary to s.39(2) CYPA 1933. N was also charged with a second offence relating to a near identical article in a different regional periodical.
The defence made a submission of no case to answer on behalf of the editor and applied to stay the proceedings as abuse of process on the grounds that:
1.There was no power to prosecute an editor under s.39(2) CYPA 1933 because “a person who publishes” means only the corporate defendant publisher and not an editor.
2.The comparable offence under s.49(2) CYPA (restrictions on newspaper reports of proceedings in juvenile courts) had been amended by the Criminal Justice and Public Order Act 1994 to specifically include an editor. Thus it should be inferred that when Parliament intended to include an editor, it expressly stated so. The amendment was a widening amendment because if s.49(2) as unamended had included an editor, this amendment was unnecessary. Section 39 as a narrower provision must exclude an editor.
3. The prosecution was an abuse of process as disproportionate and contrary to Article 10 (right to freedom of expression).
N had pleaded guilty to the two charges.
1. whether an editor is capable of being “a person who publishes” for the purposes of s.39(2) of the Children & Young Persons Act 1933.
2. whether the prosecution was an abuse of process and whether the magistrates’ court had power to stay the proceedings as an abuse of process.
Refusing A’s submission of no case to answer and refusing to stay on the grounds of abuse of process:
1. Section 39(2) was wide enough to include an editor. The amendment to s.49(2) was a narrowing amendment rather than a widening amendment. Parliament had amended CYPA 1933 and had had the opportunity to exclude an editor from s.39(2) or bring it in line with s.49(2) but had chosen no to do so.
2. The matters relied on by A in support of the abuse of process argument predominantly went to sentence not whether the trial should proceed. In any event, whether a prosecution should be brought is not appropriate function of the Magistrates’ Court, it formed part of the regulatory function of the High Court: applying R v Horseferry Road Magistrates’ Court ex parte Bennett  3 WLR 90.
Following refusal of A’s application, the charge was put again and A pleaded guilty.
1. N was fined £2,160 in respect of each charge and ordered to pay costs. The starting point was held to be £3,600 with credit being given for a guilty plea and for steps taken by N to improve internal systems.
2. A was fined £1,600. The starting point was held to be £2,400 with credit given for a guilty plea.
The matter was described by the Judge as “a novel and unusual case”. The question of whether an editor is “a person who publishes” for the purposes of s.39(2) CYPA 1933 was not covered by authority. The fact that an editor in principle can be liable is supported by the case of Briffet v CPS  EWHC Admin 841 but the argument raised by the defence concerning the amendments to s.49 was not considered in that case.