Youth Courts And The Press – Uncertainty Reigns!

Its been a stressful few months for the Editors of two regional newspapers who were prosecuted for publishing photographs which allegedly identified Defendants who had appeared in their local Youth Courts.

Whilst one of them was able to breathe a sigh of relief when the prosecution was thrown out, the other Editor was left scratching his head wondering why he had been convicted of breaking the law – and why he had to reach for the cheque book to pay the fine.

The tale starts in 2002 when at about the same time, the Evening Herald in Plymouth and the Evening Telegraph in Peterborough both published reports of serious offences having been committed by local teenagers.  The Evening Herald published a photograph of the Plymouth Defendant with his face obscured by a black box, whilst the Evening Telegraph used pixilation to obscure the face of the Peterborough tearaway.

In the Magistrates Court earlier this year, the Evening Herald was convicted of breaching the automatic ban on identifying the youth, which is contained in S.49 of the Children and Young Persons Act 1933, and its appeal to Plymouth Crown Court was dismissed.  However, at Peterborough Magistrates’ Court a short time later, the District Judge dismissed the prosecution, saying that the Evening Telegraph had no case to answer.

So what conclusions can be drawn from these decisions, and is there a workable test that Editors can now apply when deciding what can, and cannot, be published?

Well, the good news is that both Courts accepted that a photo which does not identify the young Defendant does not breach the anonymity rule.  This might appear to be obvious, but the prosecutors in both cases urged the Court to hold that publication of a photograph, even with the Defendant’s features masked, is prohibited by S.49.

Fortunately, both the Crown Court Judge and the District Judge held that such a strict interpretation of S.49 is wrong.  They made the sensible decision that S.49 prohibits the publication of photos which identify the Defendant, and does not apply to photos where recognition is not possible.

But now the bad news.  The effect of these two decisions is that no-one now has any clear idea of the test that has to be used to decide what can, and cannot, be published to ensure compliance with S.49 – which is something of a problem for editors, news editors, reporters and their lawyers.

At Plymouth Crown Court, Andrew Caldecott QC, for the Evening Herald, made two submissions: first, that the correct test is whether a reasonable Editor should have appreciated that the photo created a likelihood of recognition; and second, in applying this test, the evidence of friends and relatives who know the Defendant and who know about his Court appearance, should be discounted because they are able to identify the Defendant from the knowledge they have, and not from the subsequently published photograph.

The Judge specifically rejected the first submission.   He held that the correct test is whether it is likely that a reasonable person will be able to identify the youth from the photograph.  He then dismissed the Herald’s appeal because he accepted the evidence of a neighbour and a teacher of the youth, who both said that they recognised him from the photo, even though they already knew him.  The Judge must, therefore, have rejected Mr Caldecott’s second submission, although he failed to deal with this point directly.

When the second prosecution came to trial before the District Judge at Peterborough Magistrates’ Court a few weeks later, Joanne Cash, Counsel representing the Evening Telegraph, adopted a similar approach.  At the conclusion of the prosecution case, she argued that even if one accepted the “reasonable person” test, none of the prosecution witnesses had recognised the youth from the photo; rather, she submitted that  they recognised him because they already knew what he had done and they knew about the prosecution.

The District Judge agreed, and threw the case out.

So where do Editors now stand?  What do these decisions tell us?  Well…not a lot, because the Crown Court Judge in Plymouth was prepared to accept the evidence of witnesses who already knew the youth, whilst the District Judge in Peterborough rejected the evidence of witnesses for the same reason.

There is no doubt that the decision at Peterborough Magistrates’ Court is “a victory for common sense in the public interest” (as one commentator put it), but whether the Peterborough decision “swings the balance” once again towards publication of obscured images of under-age criminals, as the same commentator believes, remains to be seen. 

And what about the lawyers who have to advise as to whether or not a manipulated photo can be published?  Editors should not be surprised if the advice they receive begins with that well known legal expression – “it depends”!

Tony Jaffa

Published 27/09/2006.