EDITORS have always had many responsibilities but one that perhaps not everyone appreciates is criminal liability for what their paper publishes.
For certain offences it is not the newspaper company that ends up in the dock, but the editor, facing a conviction for a criminal offence.
There are a number of offences that they can commit in this way – contempt of court; identifying a victim of a sexual offence, or identifying a child in proceedings who has been given anonymity by the court.
It is this last offence that Brian Aitken, outgoing editor of The Journal, Trinity Mirror’s regional morning newspaper published out of Newcastle, was convicted of earlier this month.
His paper reported on a sexual offence committed by a teacher. In such cases the anonymity given to the victim is statutory sexual offence anonymity.
This would mean the victim’s name and address would be forbidden and any other detail likely to identify her – so her school if it is a reasonably large one, is unlikely to be an identifying detail.
However, Mr Aitken and his journalists did not know that an order under Section 39 of the Children and Young Persons Act 1933 had also been placed on the child victim. Section 39 is similar in its scope to sexual offence anonymity, but it also expressly forbids the naming of the school.
So The Journal, and Mr Aitken, had unknowingly committed an offence. A decision was taken to prosecute Mr Aitken and he was convicted of the offence and fined £1,600, and so now has a criminal record that would show up on a CRB check and could interfere with his life if, for example, he applied for a U.S. visa for a holiday.
On the face of it, an editor who publishes information in violation of a court order might get little sympathy. But it’s far from straightforward.
Firstly, it is not as easy as you might think to find out whether a court has made an order in any particular case.
There is no central record kept of such orders, and certainly no online database to check. You are reliant on the diligence of court staff in finding such matters out, and that is variable to say the least.
This is despite the fact that any court making such an order is under an obligation to communicate it to anyone reporting that hearing, or any subsequent hearing, in writing. This was established in the case of R v Central Criminal Court ex p Godwin and Crook which said that any section 39 order must be specific in who it applies to; must be in writing and must be communicated to any media who are not at the hearing where it was made.
The booklet ‘Reporting Restrictions in the Magistrates Court’ – effectively a statement of the courts’ own rules for making restrictions reiterates this and says: “When a discretionary restriction order is made, it is desirable that the media are given every assistance to comply with it.
Magistrates may, therefore, think it helpful to say that if there are any particular problems arising from the making of the order which the media wish to raise in a written note, further guidance will be given in open court.
Every court should have a proper procedure for ensuring that adequate steps are taken to draw any discretionary restriction order to the attention of media representatives who may not have been in court when the order was made and the court should ensure that the procedure has been followed.”
In my experience magistrates nod at the press bench and mutter ‘we make the usual order’ – no written copy, no communication of the order to subsequent hearings.
I know of courts that have been so lax in this that when a reporter queried whether an order had been made, the court was reconvened by the judge specifically to make an order on the case, which he had forgotten to do during the proceedings.
So, if we are going to see prosecutions like this take place and a strict adherence to the rules, then perhaps newspapers ought to insist on a similar adherence to the letter of the law.
Maybe they should insist that every order, every Section 4, Section 11 and Section 39 is given to them in writing, setting out exactly what restrictions the judge or magistrates have in mind.
We have seen similar prosecutions of editors under sexual offence legislation where their paper has accidentally put too much detail in about a victim, risking identification.
This action is a world away from the deliberate actions of a mob targeting a victim, as we saw in the case of Ched Evans, yet in law they are treated as the same offence.
This practice of prosecuting editors and sometimes journalists for crimes of publication is, in my view, wrong.
Very often they are strict liability offences where absence of intent is irrelevant to the prosecution.
These laws stem from an era, probably fictional, when the editor sat at the hub of the newspaper, examining every word they published. As for the deterrent effect of such prosecution, do they seriously imagine that editors across the country sit poised ready to identify victims?
A far more effective deterrent would be proper communication of court orders to all media, as set out above. The offences, rather than crimes, could be dealt with as civil matters with damages for the victim – which at least one victim has pursued, receiving more in damages than she did as criminal injuries compensation.
Today, in a country with a supposedly free press, we are seeing too many journalists’ homes raided at dawn, too many held on long bail, and too many in the dock.
It is time the practice of criminalising editors and journalists for accidentally breaching anonymity was abolished.
David Banks Media Law 