39. Power to prohibit publication of certain matter in newspapers.
— (1) In relation to any proceedings in any court . . . F6, the court may direct that—
no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person [F7by or against] or in respect of whom the proceedings are taken, or as being a witness therein:
no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;except in so far (if at all) as may be permitted by the direction of the court.
Court reporting has been a focus of intense debate in recent weeks. First there was the live tweeting of Julian Assange’s first appearance in a British Court (points awarded to The Times, although most of the world’s media seems to be claiming credit for that one) hotly followed by the interim guidance from the Lord Chief Justice with regards to live text-base reporting, as document puts it.
All this let to some intense debate among media commentators, across every platform you care to think of, around the whole issue of court reporting, and how the Law of the Land is achingly behind developments of the last century, let alone this one.
Then half the online world convicted a man who was arrested and later released without charge in relation to the Joanne Yeates murder investigation, and the debate shifted to the new Hot Topic - Contempt of Court and social media.
That’s an important issue and (I reckon) the inability to control what people say on social media will play a significant part in forcing an update to our antiquated legal system. But, away from the Hot Topics of tweeting in court, and inappropriate Facebook wall posts, an issue that really needs a brighter spotlight shining on it is surely the scattergun dispensing of reporting restrictions that regularly occurs in magistrates and crown courts, under the aegis of the Section 39 Children and Young Persons Act 1933.
I'll leave the expert commentary to, well, experts like David Banks (although I am foxed by some restrictions; most reporters have, at some point, watched from the press bench as a hulking, recidivist 17-year-old thug swaggered out of the court on bail, knowing his identity was securely hidden from the public). However, it's the orders placed on infants, that only serve to protect the adult defendants, that really irk. Although it's been a while since I covered a court I’m surmising things are just as bad as when I did from the steady parade of ‘Trainee overturns Section 39 etc etc...’ like this one on trade websites.
And I’ve made challenges in the past*, both as a reporter and as a news editor, (sometimes successfully but often not, even though the order was incorrectly made); my copy of McNaes went from thumbed, to broken-spined, to redundant because I knew it off by heart. I also know, from several frustrating episodes, that it is desperately difficult to tell a magistrate or judge that they are wrong, and get them to agree.
This month, Gerry Keighley of the South Wales Argus, made a stand and stopped his reporter covering a neglect case because of an order preventing the identification of an 18-month-old child meant the defendants couldn’t be identified either.
He said he was fed up with the law being inconsistently being applied, and that the Argus wouldn’t report such cases with similar orders in future if salient details had to be withheld. Hold the Front Page has a full report here.
As a news editor I've also uttered the words “don’t bother staying then” to reporters ringing from court to say their challenge has failed. Open justice is a fine thing but there’s only so far an over-stretched hack can take things, and only so many different levels of the courts one can appeal to.
Also, there’s only so much time an understaffed newsroom can commit to sitting in a court for a report that essentially reads: “A [insert city/large town/rural borough name here] man was today jailed for six years for [doing something appalling to a baby]”. It means nothing to the reader - in fact, it’s just frustrating because it’s not half a story, it’s a fraction of a story. The who and the where are as important and the what, why and how. Yet misuse of Sec 39 takes away two crucial details while allowing (should the publisher of the content be so-minded) the graphic details to remain.
Added to this is the crucial point that there are only so many times an editor can call on legal departments to make representations, in writing or in person, and with dwindling budgets that’s the thing that worries me most.
If I were a defence solicitor in magistrates court, and I had a case that was heading for crown and featured a small child, I’d be on my hindlegs in a heartbeat reminding the bench of the need to protect its identity. Because the chances of the order holding (at least until there’s a conviction) would be good, and I’d want to show my client I was fighting on their behalf.
I’m not saying this is what defence solicitors habitually practise - they are fine and upstanding people with the law firmly at the heart of all they do, of course! - but it is what I’d do. Just as I’d request an afternoon court date for a client who wanted to stay out of the local paper, as I’d know most friendly neighbourhood court reporters tend to to be send on another job by then, and misdemeanors were more likely to go unreported.
Anyway, the Section 39 stories that appear in trade press every month are all along the lines of reporters successfully overturning orders/railing against unfair orders. What is - I think - needed is actually less ‘well done everyone’ and more ‘wtf is going on here?’ as demonstrated by the Argus. It would be great to see a collective industry push to get greater qualification and clarity for those with judicial responsibilities (especially at grassroots level), so fewer hardy trainees had to contest Sec 39s in the first place.
It's just a thought.
* My last Sec 39 challenge involved a child neglect case (toddler, in this case) ; the parents were previously convicted and due to be sentenced but they couldn’t be identified because of the order. The judge was immovable and the order remained intact but that isn’t why I remember it. I remember it because the social worker in the case grabbed me outside the courtroom door and yelled at me: “I hope you can never have children!”
Which was a little disconcerting a few moments before standing up to make legal representations. Still, it's always nice to know that social services have the best interests of the child at heart...