Courts need to get a quicker and clearer grasp of their powers to impose reporting restrictions in cases in which children may be mentioned, a specialist solicitor has warned.
Nigel Hanson, a solicitor with media law specialists Foot Anstey, said courts were continuing to show a basic lack of understanding of their powers to give anonymity to children under section 39 of the Children and Young Persons Act 1933.
His comment came after a case in which magistrates made an order which effectively stopped the media from naming a man who threatened to kill his terrified partner and told her he had murdered their eight-month-old son.
The magistrates, at Chelmsford, made the order in November last year in a case in which defendant Stephen Clark admitted assaulting his partner, Nicola Adams, causing actual bodily harm.
They banned publication of anything which would identify Clark’s baby son, even though Essex Chronicle reporter Steve Clow pointed out that orders under section 39 could not be made when the child involved was not directly concerned in the proceedings.
He also argued that the only effect of the order would be to give Clark anonymity, and that the child was too young to be affected by publicity about the case.
Clark’s defence barrister, Claire Drury, sought a new order when he appeared at Chelmsford Crown Court on Thursday last week.
But Hanson wrote to the court challenging the application, pointing out that the court had no jurisdiction to make an order as Mr Clark’s child was not “concerned in the proceedings”, as required under the Act, because he was not a victim and was too young to be a witness.
Judge Laura Harris agreed, saying: “I did look at the Act and it did seem to me that the solicitors were correct. They have cited a lot of case law in support.”
Drury told the judge: “I would like to argue, but I’m not sure I am in any position to. I would ask that the matters are dealt with sensitively.”
Afterwards, Mr Hanson said of the order made by the magistrates: “It shows courts are still not understanding very basic points about section 39 orders and open justice.
“Whenever a child is mentioned, they seem keen to restrict reporting with a section 39 order, even where the child has no real connection with the proceedings and there is no legal jurisdiction to make such an order.
“In this case, the magistrates actually retired to consider a challenge by the Essex Chronicle’s reporter at a hearing on November 19 last year, yet they still decided to keep the restriction in place. After such careful deliberation, their error is all the more worrying.
“Judge Harris got it right in the Crown Court and declined to impose a section 39 order, but her comments suggest that even she needed to double-check the legal position before agreeing that such an order would be inappropriate.
“Courts need a much quicker and clearer grasp of reporting restrictions to avoid the invalid orders that are being imposed week in, week out, by courts across the country.”
Clark, 24, was given an 18-month community order and told to attend a 27-session Integrated Domestic Abuse programme.
The court heard that he had run a knife with a five-inch blade under Adams’s throat, told her he had just killed their eight- month old baby son, and threatened to kill her after having been out drinking and smoking cannabis. He could not remember his actions.
Clark was said to have been severely depressed since his brother died in a motorcycle accident in 1999 and the death of his mother following an epileptic fit last year.