No: 201300724 C1 
Neutral Citation Number: [2013] EWCA Crim 1135
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 27th June 2013

B e f o r e:

LORD JUSTICE LEVESON
MR JUSTICE IRWIN
MR JUSTICE CRANSTON 
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R E G I N A 

v 

ROBERT JOLLEYS
EX PARTE PRESS ASSOCIATION 
 
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Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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Mr M Dodd appeared in person on behalf of the Press Association
Mr S Heptonstall appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE LEVESON:  This is an appeal by the Press Association, the national news agency for Great Britain and Ireland, pursuant to section 159 of the Criminal Justice Act 1988 in relation to an order made by Mr Recorder J.J. Wright on 16th January 2013, during the course of a criminal trial then being conducted in the Crown Court at Swindon.  The order was later confirmed, after argument, on 25th January 2013.  It is contended by the Press Association that the order was unjustified in law and, once more, demonstrates the lack of awareness both of the court's powers to restrict reporting of the proceedings and of the need to respect the limits which Parliament has prescribed. 
2.	The order, which purported to be made under section 39 of the Children and Young Persons Act 1933 ("the Act") directed that "in relation to these proceedings, no media report in any form shall reveal the name, address or school or include any particulars in any form as being or including a picture of [the minor child of the defendant] except as may be permitted by this court".  Given that the name of the school which the boy (and his two older brothers) had attended was in the public domain (as, indeed, prior to the date of the order, had been the name of the minor son), he then clarified that there was "no order banning the publication of the name of the school to which these proceedings relate".  He recognised that, by implication, the result was that the minor son could be identified.
3.	The facts are easily summarised.  Robert Jolleys is a former army officer who was then being tried for defrauding taxpayers by claiming more than £180,000 to send his three boys to an independent boarding school when his personal circumstances were such that he was not entitled to do so.  He was eventually convicted of three counts of obtaining a money transfer by deception, three of fraud and one of forgery; he was acquitted of one further offence and the jury were discharged from returning verdicts on three others.  His older sons were aged 22 and 20, but the youngest, then 15, was still at the school concerned.  
4.	During the early stages of the trial, the prosecution identified all three sons and the school which was the same in each case; these facts were reported.  On 16th January, however, counsel for the Crown brought these reports to the attention of the Recorder and expressed concern that the youngest son came within section 39 of the Act and deserved the protection of the court.  Nobody from the press was given the opportunity to make representations at that stage.  Indeed, Mr Mike Dodd, the legal editor of the Press Association, informed the court that the reporter was specifically prevented from so doing.  Having said that, the order was put into place until it would be "properly argued" by counsel and "by somebody from the press if need be".  
5.	It should be observed that, at this early stage, the Recorder ignored Rule 16 of the Criminal Procedure Rules.  Rule 16.1 specifically identifies that the Rule applies where the court can impose a restriction on reporting what takes place at a public hearing.  Rule 16.2 is in the clearest terms as follows:
"(1) When exercising a power to which this Part applies, as well as furthering the overriding objective ... the court must have regard to the importance of ‑
 (a) dealing with criminal cases in public; and
 (b) allowing a public hearing to be reported to the public.
 (2) The court may determine an application or appeal under this Part ‑
 (a) at a hearing, in public or in private; or
 (b) without a hearing.
 (3) But the court must not exercise a power to which this Part applies unless each party and any other person affected ‑
 (a) is present; or
 (b) has had an opportunity ‑
 (i) to attend, or
 (ii) to make representations."
6.	It cannot be suggested that the press were not affected by the order; indeed, it was specifically to restrict what could be reported that the order was made.  This failure to allow representations at that stage represented a serious inroad into the respect owed to the press concerned to report criminal proceedings.
7.	Following the evidence (but, we anticipate, prior to conviction), the Recorder revisited the order.  Counsel for the defendant said that it would be impossible to say that the boy did not come within section 39 of the Act and was not "concerned in" the proceedings.  In relation to Article 10 of the European Convention on Human Rights, although counsel recognised that the order had to be necessary, proportionate and in accordance with a pressing social need, he spoke about the pressure on the boy and the risk (depending on the verdicts) that it would or could be said of him that his father had been convicted of fraud for the purposes of funding his education.  
8.	It was recognised that there had been some reporting but asserted that it had not been extensive and, in the event of conviction, the case would attract considerable press interest, not least because of the issue of a military education allowance.  Counsel recognised that the reporting would be in good faith but said that it would result in "very considerable unhappiness" for the youngest son.  
9.	A reporter from the Press Association was then given the opportunity to make representations and argued that the youngest son was not "concerned in proceedings" as he was not "the person by or against, or in respect of whom the proceedings are taken" or a witness.  He referred to the guidance on Reporting Restrictions in the Criminal Courts published by what was then the Judicial Studies Board, now the Judicial College, to the effect that the child or young person must be alive and will be concerned in criminal proceedings if he is a victim, defendant or witness in the case.  The Recorder rejected the argument that he did not have the power, having observed that if he did not make the order, life for the boy at school would be a bit of a misery.  
10.	Mr Dodd challenges the construction which the Recorder placed on section 39 of the Act, bringing the appeal to highlight what he contends is a continuing problem for journalists and the media, namely the willingness of courts to make unnecessary orders or to assume powers that they do not have.  He submits that the courts all too often seem unaware of the guidance that is available and leave it to individual reporters (who will not be as versed in the law as the court, with the assistance of counsel, should be) to attempt to challenge the approach.  
11.	At the heart of this appeal is the proper construction of section 39 of the Act which provides:
 (1) 	In relation to any proceedings in any court the court may direct that ‑
a.  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 by or against, or in respect of whom proceedings are taken, or as being a witness therein; 
b.  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 court.
 (2)	 Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine not exceeding level 5 on the standard scale."
12.	Contrary to the view expressed by the Recorder, Mr Dodd argues that a person is "concerned in the proceedings" if, and only if, he or she is "the person by or against or in respect of whom the proceedings are taken or as being a witness herein".  In relation to criminal proceedings, this can only include a child or young person who is the victim of an alleged offence, or the defendant or a witness; in civil proceedings, it could also include a child or young person on behalf of whom an action was being brought, for example, in relation to a road traffic accident or medical negligence.  
13.	In our judgment, Mr Dodd is clearly correct.  The phrase "concerned in the proceedings" is defined and limited by the words that follow "the person by or against, or in respect of whom proceedings are taken, or as being a witness therein".  It does not extend to children or young persons simply on the basis that they may be concerned in the more general sense of being affected thereby.  This construction is reinforced by the unanimous view of the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2005] AC 593 expressed by Lord Steyn, who emphasised these words and observed that in regard to children not concerned in a criminal trial in the way described, there had been a legislative choice not to extend the right to restrain publicity to them (see paragraph 21 at page 605B).
14.	The point was also made forcefully by Sir Igor Judge, then President of the Queen's Bench Division, in Re Trinity Mirror and others (A and another intervening) [2008] QB 770, [2008] EWCA Crim 50, in which a judge had purported to ban the media from identifying the daughters of a man who had admitted possessing child pornography.  He made clear (at paragraph 25) that section 39(1) had no direct application because:
"the defendant's children were neither complainants 'by ... whom' nor defendants 'against ... whom' nor victims 'in respect of whom' the proceedings were taken nor witnesses in them."
15.	The court also rejected the proposition that there was some inherent jurisdiction to grant an injunction on the basis that the objective sought to be achieved was desirable or just and convenient.  He went on:
"32. ... We must however add that we respectfully disagree with the judge's further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under article 10 should be resolved in favour of the interests of the children.  In our judgment, it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials.  In simple terms this represents the embodiment of the principle of open justice in a free country.  ...  From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation and, where the court is vested with a discretion to exercise such powers, on the absolute necessity of doing so in an individual case. 
33.  It is sad, but true, that the criminal activities of a parent can bring misery, shame and disadvantage to their innocent children.  Innocent parents suffer from the criminal activities of their sons and daughters.  Husbands and wives and partners all suffer in the same way.  All this represents the further consequences of crime, adding to the list of victims.  Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence.  ... If the court were to uphold this ruling so as to protect the rights of the defendant's children under article 8, it would be countenancing a substantial erosion of the principle of open justice to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them." 
(our emphasis)
16.	It is worth adding that, quite apart from the principle which utterly undermines the approach of the Recorder, there are other serious defects.  First, as we have recounted, the Criminal Procedure Rules required (using the word 'must') that he provide the press with the opportunity to make representations before making the order.  Second, he approached the issue from the wrong direction.  It was for anyone seeking to derogate from open justice to justify that derogation by clear and cogent evidence: see R v Central Criminal Court ex parte W, B and C [2001] 1 Cr App R 2 and, in civil cases, the Practice Guidance (Interim Non‑disclosure Orders) [2012] 1 WLR 1033 and Derispaska v Cherney [2012] EWCA Civ 1235, per Lewison LJ (at paragraph 14).  The order was made when defence counsel asserted the likelihood of the defendant's son suffering "the most extraordinary stigma through no fault of his own" which caused the Recorder to ask the reporter what the need for identifying the son was, rather than whether it was necessary to restrict his identification.  
17.	The third defect in the order was that it extended somewhat loosely to "a media report".  The Act was extended by section 57(4) of the Children and Young Persons Act 1963 to sound and television broadcasts which, although prospectively to be repealed, is then effectively replaced by section 203 and paragraph 3(2) of Schedule 20 of the Broadcasting Act 1990, to reports or matters included in a "programme service", i.e. television and other broadcasting services identified in section 201 of the 1990 Act.  
18.	In MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB), Tugendhat J made the point that section 39 orders covering children and young persons involved in court protection might not give the degree of protection intended because the power to bestow anonymity is restricted to reports in newspapers and in sound and television broadcasts.  It may, therefore, not apply to other forms of report such as those which appear on web‑based social media sites such as Facebook and Twitter.  
19.	Where such orders are made, they should be restricted to the language of the legislation (which is no more than this court said in Ex Parte Godwin [1992] QB 190 at 196H).  Its proper construction can then be considered as and when the need arises, although we recognise the responsible attitude adopted by the Press Association which makes it clear that it will abide by the spirit as well as the letter of section 39 and would not draw a distinction between publication in news stories or online through the mechanism of micro‑blogging sites such as Twitter.  Any further developments in this area of the law must be for Parliament.
20.	We conclude by recognising the concern that Mr Dodd, carefully and without exaggeration, expressed.  The requirements of open justice demand that judges are fully mindful of the underlying principles which this judgment has sought to elucidate.  In most cases, the application of the law is obvious and nobody will contend to the contrary.  The fact that an order has been or may be made under section 39 of the Act and is so identified in the court list is more than enough notice to the press should any reporter wish to make representations or challenge a subsisting order.  
21.	Where, however, there is the slightest doubt, or any novel approach is suggested, it should be identified in good time and notice provided as required by the Criminal Procedure Rules so that the press can also consider the matter in good time.  Even then, judges cannot expect local reporters to be in a position to instruct lawyers or argue the principles in depth, and in any event counsel should be required to research and develop the arguments to assist the court in a balanced way.  That is not in any way to limit the right of reporters or their lawyers to advance argument on their own behalf.
22.	In the circumstances, this appeal is allowed and the order made by the Recorder discharged.  We hope that this decision, added to the others to which we have made reference, will be publicised sufficiently to ensure that the problem does not recur.