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An editor of a newspaper who breached a reporting restriction qualified as “any person who publishes” under the under the Children & Young Persons Act 1933, s 39

Aitken v Director of Public Prosecutions [2015] EWHC 1079 (Admin)

Related Member(s):
Edward Craven
Related Practice Area(s):
Crime and Regulatory Law, Media and Information Law

The appellant was the editor of a regional newspaper, which published a court report in breach of a reporting restriction order imposed . The publishing company and the editor were both prosecuted.

At his criminal trial, the appellant submitted that he had no case to answer because there was no power to prosecute a newspaper editor for the offence created by s 39. The judge rejected that submission and the appellant changed his plea to guilty and was fined. The appellant sought to challenge the judge’s ruling.

The key question for the court was whether the expression “any person who publishes” in s 39(2) includes the editor of a newspaper that publishes material in breach of the terms of an order imposed under s 39(1).

Counsel for the appellant argued (i) that a penal statute should be interpreted strictly and conservatively, (ii) that an editor falls outside the scope of the words “any person who publishes” and (iii) that the history of amendments to ss 39 and 49 of the Act are important in considering the scope of the offence under s 39(2).

Dismissing the appeal, Mr Justice Warby held that the editor of a newspaper does not as a matter of law fall outside the scope of the expression “any person who publishes” in s 39(2). He added that it would be anomalous for editors to be exempt from liability under s 39 when they are prima facie liable at common law for libel and contempt, and are expressly identified as persons liable under other statutes considered by the court that impose criminal liability for publication.

Alex Bailin QC and Edward Craven were involved in this case.