A former editor local newspaper editor has lost his appeal against a criminal conviction for publishing a story which breached an anonymity order under section 39 of the Children and Young Persons Act 1933.
Three judges in the Divisional Court held that Brian Aitkin, former editor of the Newcastle-based Journal newspaper, came within the definition of "any person who publishes any matter" as being liable to prosecution for a breach of the order.
The charge arose from a report of a magistrate’s court appearance of a female member of school staff charged with grooming a female pupil and engaging in sexual activity with her.
Aitken took care not to publish anything which would identify the girl (as victims of sexual offences have lifelong anonymity). He decided it was in the public interest to name the school and that, with 1,000 pupils on the roll, this would not lead to the identification of the alleged victim.
But unknown to Aitken, the magistrate in the case had issued a Section 39. This is broader than the Sexual Offence Act and specifically bans identification of the school or any other matters which could lead to the identification of the child.
Mr Justice Warby, who gave yesterday's judgment, with which Lord Justice Bean and Mr Justice William Davies agreed, said it would have been "anomalous" for editors to be exempt from liability under section 39 when they were prima facie liable at common law for libel and contempt, and were expressly identified as persons liable under every other statute which imposed criminal liability for publication.
Aitken was originally convicted and fined £1,600 by a District Judge at Newcastle Magistrates' Court in October last year.
Alex Bailin QC, for Aitken, had pointed out that the court was interpreting a penal statute, and had to construe it strictly and conservatively, without being tempted to stray into any process of creative interpretation – the rule against penalisation under a doubtful law.
He had also argued that an editor fell outside the scope of the words "any person who publishes" – while he was involved in the publication process, as were journalists, desk editors, sub-editors and others, an editor was "not the person who publishes" the newspaper.
Justice Warby said he did not accept the contention that in its natural meaning the phrase "any person who publishes" referred only to the publisher.
He went on: "In my judgment the natural, ordinary and most obvious interpretation of the phrase 'any person who publishes' is that it refers to any person, natural or legal, who takes such a part in the process of publishing the matter that contravenes the direction or prohibition that it can properly be said of them that they 'publish' the matter.
"As a matter of practice, and using language in its ordinary sense, the commercial publisher of the newspaper will invariably be one such person, but it does not by any means follow that such a publisher is the only person who will qualify."
It was, said Mr Justice Warby, a well-established principle of statutory construction that Parliament did not legislate in a vacuum, but against the background of and in the context of the surrounding common law.
Authorities cited by Steven Kovats QC, for the Crown Prosecution Service, showed that from at least as early as the first half of the 18th Century the common law had taken a broad view of who was responsible for the publication of material in newspapers and other printed matter.
"A wide variety of persons involved in the process of publishing has been treated as responsible for publication, and as being aptly described as 'publishers', with editors in modern times firmly established as leading figures in this class," the judge said.
He added: "I have asked myself whether there might be a meaningful distinction to be drawn between holding a person responsible for publication and describing them as a 'person who publishes'. However, I do not consider that there is any such distinction, in this legal context.
"In my judgment it is clear that principles of common law which were long-established by 1933 held that editors and, I would add, proprietors were within the range of persons responsible for the publication of what appeared in their newspapers, and who would aptly be described as persons who published such content."