Newcastle Journal editor fined £1,600 over paper’s breach of section 39 anonymity order

The outgoing editor of the Journal in Newcastle has been fined £1,600 after his newspaper breached an anonymity order.

Brian Aitken, who it was this week announced will be leaving the Journal, pleaded guilty to a charge of having breached the order in a report which appeared in the newspaper in May last year.

District Judge Stephen Earle at Newcastle Magistrates' Court decided an editor is a person who can be prosecuted in relation to an alleged breach of an anonymity order made by a magistrates' court under section 39 of the Children and Young Persons Act 1933.

Publisher NCJ Media, part of Trinity Mirror, admitted breaching the order and was fined £2,160 on that charge and a further £2,160 in respect of a similar publication in sister title the Chronicle. It was also ordered to pay costs.

The charges arose out of a report on the magistrates' court appearance of a woman member of a school's staff on a charge of grooming a female pupil and engaging in sexual activity with her.

The alleged victim was entitled to lifelong anonymity under the Sexual Offences Act because the charge was a sexual offence. However, the court also made an order under section 39 of the Children and Young Persons Act 1933 that no report should include the name, address, school or other details "calculated to lead to the identification, of any child or young person concerned in the proceedings".

When the case continued at Crown Court the section 39 order was not continued.

The paper felt that with 1,000 pupils at the school it was a big enough pool to be able to name the school.

The victim was never identified but the editor was found to have breached the strict terms of the section 39 order which probibits identification of the school. Press Gazette understands that Aitken had not been informed that the section 39 was in place.

When the case for the breach of the order came up at Newcastle on 27 October, Alex Bailin QC argued Aitken should not have been prosecuted because the wording of section 39 (2) specified that the liability for breaching an order was borne by "any person who publishes any matter in contravention of an order", and that Aitken, although the editor, was not the person who published the material.

He contrasted sections 39 and 49 of the Act, pointing out that Parliament had amended section 49 three times. The amendments had included changing the details of who was liable to prosecution for a breach from "any person" to specify that, in relation to a newspaper, those who could be prosecuted were the "proprietor, editor or publisher".

But Parliament had left section 39 (2) unchanged, except to amend the penalty from the original £50 to Level 5 on the Standard Scale, currently £5,000.

The failure to amend the details of those liable to prosecution for breaching a section 39 order, Bailin argued, meant that the list was restricted to the actual publisher of the material, rather than the editor or anyone else, and must be narrower than the wider range given in the amended section 49 (2).

But Cristina Michalos, prosecuting, argued that the scope of the original wording was wider than that of the amended wording, so that the effect of the amendment to section 49 (2) was to restrict the range of people who could face prosecution.

District Judge Earle rejected the defence's arguments, saying he was satisfied that there was no substance to the submission of no case to answer.

The fact that section 39 and section 49 had the same start point in 1933 "does not mean that Parliament has remained of the same view since," he said, adding: "That cannot just be because parliamentary language has changed though because, clearly, they have amended section 49 quite markedly but not section 39, despite having had the opportunities so to do.

"Was the original wording was more or less restrictive in section 49 as originally enacted? I do not agree with the defence submission on this point and I am with the prosecution that the amendment to section 49 (2) is more restrictive by naming those who may be prosecuted, rather than the term, 'any persons'.

"I believe the earlier term caught all of those in the later term and others perhaps too. For example, the journalist would have been covered originally perhaps, but specifically not now."

Parliament might have not intended to alter section 39 as it had section 49 as an order under the former was discretionary, but anonymity under the latter was mandatory.

He added: "Whilst the defence did argue that only the publisher can publish, I am more attracted to the prosecution argument, that the word 'publishes' in section 39(2) … refers to the person who publishes (the verb) rather than to the periodicals owner, the publisher (noun).

"I am also attracted to the prosecution argument that subsequent amendments to section 49 does not, of itself, cast new meaning on the original section 39 in the Act."

He dismissed the argument that it was an abuse of process to prosecute Aitken when the Crown Prosecution Service (CPS) was not pursuing the editor of the Chronicle, which carried the same story.

The CPS had taken the view that the Chronicle editor's circumstances differed and that, under the prosecutorial code, such a prosecution was unlikely to succeed or would not be in the the public interest.

"The fact the CPS take a view in relation to each cases circumstances does not, of itself lead to an abuse in the cases they do legitimately seek to pursue," said District Judge Earle.

He added: "There is a public interest in seeing that the court's directions are followed in matters where they have exercised their appropriate discretion and other parties have had the opportunity to challenge then legitimately.

"To then flout the decision of the court must be dealt with, if not to protect the integrity of the court ruling, then at least to protect the individual youth for whom the protection was intended."