Reporting restrictions in relation to section 39 and 49 of the Children and Young Persons Act 1933

General rule is that all court proceedings must be held in open court to which public and the media have access. Open justice is one of the vital character of the rule of law in Britain. This is an essential element of the criminal justice system, that it should disclosed to public and subject to public scrutiny. The media plays a vital role here by reporting the information in the courts trial, and reflect the public interest. However, there are some exceptions to these principles, where there can be reporting restrictions on the specific information of the trial.

Section 49 of the Children and Young Persons Act 1933 (CYPA 1933) gives a general rule that proceedings in the youth court are not open to the public. Although press representatives are permitted to report on proceedings, they are automatically restricted from reporting the identity or any details that would lead to the identity of any child or young person involved in the proceedings. This can be witness, defendant or victim.

This section also applies to;

  • appeals from the youth court, including an appeal by way of case stated;
  • proceedings in the magistrates’ court for breach, revocation or amendment of a Youth Rehabilitation Order and appeals
  • against such proceedings (section 49(2) CYPA 1933).

In relation to appeal the Crown Court must hear an appeal from the magistrates’ court (including the youth court) in public even though reporting restrictions apply automatically. However, court can order a hearing to be in private, providing that prosecutor made an application for a private hearing. In that case, the court may look at whether the appeal concerns a matter of law of general importance.

The identity of a victim, witness or defendant under the age of 18 who is concerned in proceedings in the magistrates’ court or Crown Court may be published. However, court can make an order under section 39 CYPA restricting reporting in a newspaper; or in a sound or television broadcast. When the victim or witness request this restriction, prosecutors should make an application to restrict reporting the identity or details that would lead to the identity of a victim and witness under the age of 18 under section 39 CYPA 1933. If the views of the victim or witness have not been ascertained, prosecutors should still seek such restrictions if these would appear to be in the best interests of the young victim or witness, having regard to the principles set out in this guidance.

Young victims of rape and other serious sexual offences will have automatic anonymity subject to the provisions of the Sexual Offences Act 1992. Young witnesses to such offences do not receive this protection and so therefore it is at the discretion of the court to make an order under section 39 CYPA 1933.

In R on the application of Y v Aylesbury Crown Court, Crown Prosecution Service, Newsquest Media Group Limited [2012] EWHC 1140 (Admin), the Administrative Court gave the following guidance to courts to decide whether a section 39 restriction should be made/lifted:

  • The defendant will have to satisfy the court that there is a good reason to impose the restriction. In most cases the good reason upon which the defendant child or young person will rely is his or her welfare (Section 44 Children and Young Persons Act 1933);
  • The court should identify the factors which would favour restriction on publication and the factors which would favour no restriction;
  • The court should balance the interests of the public in the full reporting of criminal proceedings against the desirability of not causing harm to a child concerned in the proceedings. The court is required to have regard to the welfare of the child, and 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;
  • If having conducted the balancing exercise, the factors favouring a restriction on publication and the factors favouring publication are very evenly balanced, then a court should make an order restricting publication;
  • Any order made must comply with Article 10 ECHR – it must be necessary, proportionate and there must be a pressing social need for it. Age alone is not sufficient to justify imposing an order;
  • The court may also decide to permit the publication of some details but not all;
  • The court may review an order at any time and frequently are invited to do so where a defendant named in an order has been convicted at trial. The welfare of the child must be taken into account, but the weight to be given to it changes where there has been a conviction, particularly in a serious case. There is a legitimate public interest in knowing the outcome of proceedings in court and the potential deterrent effect in respect of the conduct of others in the disgrace accompanying the identification of those guilty of serious crimes;
  • The court should give reasons for its decision.

Breach of reporting restrictions imposed automatically under section 49 or made by a section 39 CYPA 1933 order, are summary offences under section 39(2) CYPA 1933 and section 49(9) CYPA 1933. These are effectively offences of strict liability. Section 1 and 2 of the Contempt of Court Act 1981 creates the strict liability rule. It provides that it is a contempt of court to publish anything to the public which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded, even if there was no intent to cause such prejudice.

There are reasons for restricting publication of material that identifies children and young people who are concerned in court proceedings. Public identification of children and young people in breach of CYPA is irreversible. This can cause both immediate and long term distress and harm; therefore it will almost always be in the public interest to prosecute those who have responsibility for publication of material that breaches CYPA 1933.


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