Reporter's challenge lifts 'nonsensical' ban on naming dead child

A magistrates' court made an order banning the media from identifying a dead child when a man appeared charged with murdering his six-year-old daughter.

But Sutton Guardian chief reporter Mike Murphy-Pyle persuaded a judge at the Old Bailey not to renew the order, under section 39 of the Children and Young Persons Act 1933 (CYPA), when the defendant, Ben Butler, of Sutton, appeared at the Old Bailey on March 13.

Murphy-Pyle pointed out to the judge that guidance issued by the Judicial College, in conjunction with the Newspaper Society, Society of Editors, and Times Newspapers, states clearly in section 4.2, headlined Protection of Under-18s, on page 15: "Section 39 CYPA permits a criminal court to prohibit publication by the media of the name, address, school or any information calculated to lead to the identification of any child or young person concerned in criminal proceedings before that court. The power to prohibit publication also extends to pictures of the child or young person. The order only applies to the proceedings in the court by which it was made.

"The child or young person will be concerned in criminal proceedings if he is a victim, defendant or witness in the case. He must still be alive."

Murphy-Pyle said that one difficulty with the order was that the newspaper did not find out until after Butler appeared in court – at the hearing at which the section 39 order was made – that he had been charged and remanded in custody.

This meant that the press were given no opportunity to challenge an order – which the court had no right to make in the first place – despite the requirement of Part 16.2 (1) of the Criminal Procedure Rules, which says a court should not impose a reporting restriction unless each party and any other person directly affected is present or has had an opportunity to attend or to make representations.

Sutton Guardian assistant editor Matt Watts told the Holdthefrontpage website: "Mike did really well to have the order lifted, but the situation illustrated a wider issue with court orders being put in place in magistrates' courts without prior warning of the hearing to the media.

"The first anyone knew of the charges against Mr Butler was when the police sent out a statement after Mr Butler has appeared in court, and the section 39 had been put in place

"This meant we had been deprived of the chance to make representations against the section 39 at the first hearing, when if we had, there was a strong chance it would never have been put in place.

"But without that chance to make those representations, there were several days we were unable to properly report the case, that included our weekly print edition being published."

Media Lawyer comments: Once again a magistrates' court has made a nonsensical order banning the publication of a dead child's identity.

Once again the court seems to have ignored clear guidance from the Judicial College, as well as the requirements of the Criminal Procedure Rules, and the principle of open justice.

And once again a court has ignored the basic requirement for the imposition of any reporting restriction – that it must be necessary and proportionate, and that it is for those seeking the order to demonstrate that necessity by producing clear and cogent evidence.

Did no-one in the magistrates' court, either the magistrates or legal adviser, ask just what the order was intended to do, and why it was necessary to ban publication of a dead child's name?

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