High Court dismisses newspaper editor’s appeal against conviction and fine for publication of a story in breach of an anonymity order

Anna Caddick

In Aitken v DPP , Mr Justice Warby in the High Court (giving the lead judgment for a panel of three judges) held that individuals such as newspaper editors can be convicted under section 39(2) of the Children and Young Persons Act 1933 of the offence of breaching reporting restrictions, which applies to “any person who publishes” matters relating to a child in breach of a court order or injunction.

Mr Aitken was the former editor of a Newcastle based newspaper and had been convicted and fined £1,600 by a District Judge over a story about a school worker accused of sexual offences concerning a pupil. The article named the school, in breach of an anonymity order (the existence of which Mr Aitken was not aware of). The publishing company was also charged and pleaded guilty to the offence.

It was argued for Mr Aitken that, as a penal statute, the words must be construed “strictly and conservatively” and that, with that in mind, whilst an editor is involved in the publication process, he is not the person who actually publishes the newspaper. Ordinarily the “publisher” will only be one person, namely the publishing company itself: any other construction was said to be artificial and contrary to the well-established rule against doubtful penalisation.

After an extensive review of both the statutory regime governing analogous matters and the common law of defamation and contempt, Mr Justice Warby held that the meaning of section 39(2) was “clear and distinct”, and included the possibility of editors being charged. (The 1933 Act did not deem an editor to be responsible, it would therefore need to be shown that the editor’s conduct on a particular occasion was such that they published the matter in question).

Postscript: The scheme of statutory reporting restrictions was noted to be incoherent, with in particular discrepancies between the regimes for civil and criminal proceedings. The High Court suggested that this was an area fit for review by Parliament.

Aitken v DPP [2015] EWHC 1079 (Admin)

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