The stabbing of Spanish teacher, Ann Maguire, in a school in Leeds on 28 April 2014 resulted in a media storm. Not least because Ann Maguire’s death was the first instance of a teacher being stabbed to death in a British classroom, and the first killing of a teacher in a school since the Dunblane massacre in 1996.
A 15 year old was arrested following the incident, and The Sun named the suspect on 30 April 2014 prior to them appearing in court. The Times also reported that the child suspect had been widely named on “social media outlets.”
When the suspect appeared before Leeds Crown Court for the first time, the prosecuting barrister (Paul Greaney QC) noted the vast amount of attention the case had attracted from the media so far. He made the important observation, which was reiterated by the trial judge, that since the proceedings against the suspect were ‘active;’
any publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced will be a contempt of court … It should be understood that this applies not only to publications by news organisations but also by users of online social media and bloggers.
This is because section 2(1) of the Contempt of Court Act 1981 states that ‘strict liability contempt’ can apply to communications made to the public “in whatever form.” It is not limited to mass media publication. However, naming a suspect is not generally seen as capable of amounting to contempt of court in a strict liability sense. There needs to be a substantial risk of serious impediment or prejudice to the trial if the suspect were to be named. Here it is worth noting the observation made by Lord Devlin in the defamation case Rubber Improvements Ltd and Lewis v Daily Telegraph Ltd  AC 234;
If the ordinary sensible man was capable of thinking that wherever there was a police inquiry there was guilt, it would be almost impossible to give accurate information about anything…
Therefore, trials will usually proceed in their normal way after the naming of a suspect or someone under arrest. The relevant provision protecting the suspect from being publicly named,in this case, is section 39 of the Children and Young Persons Act 1933. The trial judge has put in place a section 39 order, varying it to permit the naming of the school where the attack took place. However, its application to this case has highlighted some interesting anomalies.
Fair and accurate reporting of criminal matters is a vital aspect of open justice. As Lord Steyn observed in In re S (A Child)  1 AC 593;
The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction.
Here Lord Steyn highlights the importance of unrestrained reporting all the way through the criminal process, and not just after a person has been found guilty of a crime. Full reporting in this way can promote “public confidence in the administration of justice.” The naming of defendants was given particular regard in this case. Lord Steyn noted that it was;
important to bear in mind that from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.
Arrests are just as much part of the criminal justice process as the trials themselves. Thus, it could be argued that it is also in the public interest to name suspects upon arrest. In R (Y) v Aylesbury Crown Court  EWHC 1140, Newsquest Media Group and Thames Valley Police made a submission which was held to be a public interest consideration that a court would be entitled to take into account. They submitted that in naming offenders one;
demonstrates to the community that the police have done all that they could do in the face of a serious problem … and thus would restore confidence of the community in the criminal justice system.
Furthermore, the naming of a suspect could in fact aid the administration of justice further. This was recently demonstrated in the case against Stuart Hall on sexual assault charges. A great amount of the charges that Hall admitted to were as a result of the police being contacted following his arrest. In fact, one woman said she only came forward after she had heard about his arrest on the radio.
The value in full media reporting of criminal matters was described with vigor by Sir Igor Judge in Re Trinity Mirror and Others (A and another intervening)  QB 770. He stated that;
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.
Section 39 of the Children and Young Persons Act 1933
Section 39 of the Children and Young Persons Act 1933 is the “express legislation” that seeks to prevent the identification, by the media, of children and young people “concerned in proceedings” before the courts. It states that;
(1) In relation to any proceedings in any court that 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.
According to section 107 of the 1933 Act, a child/young person is a person who is under the age of eighteen.
Any one who contravenes a direction given by the court under section 39 is liable to be fined up to £5,000. Section 57(4) of the Children & Young Persons Act 1963 extended the coverage of this provision beyond newspapers to sound and television broadcasts.
The purpose behind this statutory provision has been subject to much debate. The submission, in JC and RT v The Central Criminal Court  EWHC 1041, that the purpose was “aiding the rehabilitation” of young offenders was not accepted by Lord Justice Leveson. He saw more force in the argument that the legislation sought to protect young people from publicity “during the currency of their youth.” He went on to say that;
[t]he glare of publicity arising from contemporaneous reporting of proceedings that themselves are highly stressful is a heavy burden even on adults, and it is sensible that children should usually be protected from that combination.
The combination of an arrest and media attention could be similarly burdensome for a young person. However, there is simply no statutory instrument preventing the media from naming a child suspect at this stage of the criminal justice process.
“Proceedings”- The Loophole
The wording of section 39 of the 1933 Act makes it clear that the court can only make a direction in relation to the identification of “any child or young person concerned in proceedings.” As Cleland Thom and Roy Greenslade have noted elsewhere, anonymity under section 39 only kicks in when court proceedings have actually begun and a direction has been given. This is why The Sun’s naming of the suspect in the Ann Maguire case has been deemed by many commentators to be not against the law.
Interestingly, this “loophole” has been considered in an earlier case. On 30 December 1997, Mr Justice Moses considered an application for an injunction to prevent the naming of Jack Straw’s son in the media. The injunction sought to restrain the media from identifying the youth as having been arrested for selling cannabis to a Mirror reporter. Mr Justice Moses did grant an injunction, yet his legal reasoning for doing so has been widely criticised. Nonetheless, at the time, Lord Pannick observed that Mr Justice Moses had been correct in one notable respect. He wrote in The Times;
Section 49 of the Children and Young Persons Act 1933 states that reports of proceedings in youth courts should not identify a young person involved. But, as Mr Justice Moses recognised, there were, at that time, no court proceedings in the Straw case. The boy had been interviewed by the police and released on bail. Therefore, the judge rightly concluded, an injunction could not be granted under Section 49 of the 1933 Act. (The Times, 13 January 1998)
Although section 49 is an automatic reporting restriction imposed when a child appears before a youth court (rather than an adult court such as the Crown Court). It is similar to section 39 in that it gives anonymity to children and young persons “concerned in proceedings.” These observations would suggest that for a child to be “concerned in proceedings,” court proceedings must have actually begun.
Obligation on Defendant
Furthermore, in contrast to section 49, reporting restrictions pursuant to section 39 will not apply automatically. This emphasises the “loophole” that exists, as media freedom will continue unrestrained until a direction by the court has in fact been made to limit this freedom. In other words, provided the media keep on the right side of contempt, libel, and misuse of private information laws in the way they choose to identify the suspect, it seems they are free to name them under the law.
It was emphasised in R (Y) v Aylesbury Crown Court  EWHC 1140 that the onus was ultimately on the young person to satisfy the court that there is a good reason to impose a section 39 direction. Although “the court should give considerable weight to the age of the offender and to the potential damage to any young person of public identification as a criminal before having the burden or benefit of adulthood,” it does not remove the fact that the defendant still carries the burden of demonstrating to the court that there is a good reason to impose the restriction. This process simply highlights the fact that the status quo of media freedom in naming suspects under the law subsists until the order is made.
In cases where section 39 of the 1933 Act applies, it is important to look at the language Parliament has actually used in its legislation. As Lord Justice Leveson opined in R v Jolleys  EWCA Crim 1135, “[w]here such orders are made, they should be restricted to the language of the legislation.” In MXB v East Sussex Hospitals NHS Trust  3279 (QB), Tugendhat J made the obiter comment that;
there is force in the argument that section 39 of the 1933 Act may not give the court jurisdiction to prohibit the making of a report otherwise than in a newspaper or a sound or television broadcast.
In R v Jolleys, Lord Justice Leveson took issue with an order that extended to “a media report” . He opined that the use of such a vague term rendered the order ‘defective,’ and that orders should confine themselves to what is written in statute. Then proper construction of these terms can be considered later, to see whether they cover the reports in issue. This would suggest that orders made pursuant to section 39 need to limit their terms to “newspaper reports” and “sound and television broadcasts,” and should not refer to publications more generally (See also JC and RT v The Central Criminal Court  EWHC 1041 at ). This would, therefore, suggest that orders made pursuant to section 39 cannot restrict the naming of child suspects online. This is because the restrictions envisaged by the legislation may not be interpreted as extending to “reports” made on social network sites such as Twitter or Facebook; just to those reports made on mainstream print and broadcast media. Therefore naming the suspect in the Ann Maguire case on social network sites may continue to be lawful even after the section 39 order has been made.
As noted, the purpose of section 39 is to protect a child’s welfare. In order to properly safeguard the welfare of a vulnerable child suspect from adverse publicity online, it is for Parliament to revisit section 39 and extend it to reflect modern technological advances. Furthermore, Parliament needs to address whether legislation should be implemented to protect the identity of a child suspect before they appear in court. In its current form, the section 39 “loophole” can undermine the utility of an anonymity order later on when the suspect eventually appears before the court. Parliament has already attempted to plug this “loophole” by way of section 44 of the Youth Justice and Criminal Evidence Act 1999, which to date still remains unimplemented. At present, it seems that the restrictions on whether one can name young suspects before court proceedings have begun remains in the murky realms of media self-regulation.