By Dario Milo and Stuart Scott
Journalists need to take great care, from a legal and ethical perspective, when reporting on cases involving a child accused. This post deals only with the legal position. Under our law, section 154(3) of the Criminal Procedure Act provides that no person shall publish any information which reveals or even which may reveal the identity of an accused, or witness in criminal proceedings, who is under the age of 18 unless the presiding judicial officer authorises the publication of such information. Breaching the provision is a serious criminal offence and those found guilty could be sentenced to a fine or 5 years’ imprisonment (or even both).
The position in relation to a child accused is thus reasonably clear. But what happens when a child accused attains majority during criminal proceedings or where a teenager is convicted turns 18 and there is a pending appeal? These questions have been brought sharply into focus as the teenager, who was sentenced on 13 August 2014 to 20 years in prison for the so-called Griekwastad murders, reportedly turns 18 today.
“Be a man!” Judge President Frans Kgomo reportedly told the near-18 year old as the Judge sentenced him to 20 years in prison for each of the three murder counts (for the murder of Deon Steenkamp, his wife Chantel Steenkamp and their 14-year-old daughter Marthella); 12 years for raping Marthella Steenkamp; and four years for defeating the ends of justice. The Griekwastad murderer is said to be appealing his sentence – but may he be identified until after the appeal is finalised? Our law doesn’t explicitly regulate this eventuality.
A recent English case may be of some assistance. In JC and RT v Central Criminal Court and Others, the English courts recently ruled that the reporting restrictions in favour of defendants under the age of 18 automatically expire when a person turns 18.
In this case two children, JC and RT, then 17 years of age, appeared in the criminal court and pleaded guilty to an offence of joint possession of an explosive substance. A third defendant, also 17 years of age, admitted to similar offences but faced more serious charges including charges under the Terrorism Act. All three children had the benefit of an order under section 39 of the Children and Young Persons Act (“the English Act”) which restricts the media from reporting the name, address, school or other identifying information that could identify the child.
After pleading guilty, JC and RT were required to participate in the third defendant’s retrial by which time JC and RT were now 18. They argued that they were entitled to remain protected by the reporting restrictions even though they had turned 18.
The Queen’s Bench Division disagreed.
The Court held that “[t]here is considerable force in the view … that the purpose of the [English] Act was to protect young people from publicity during the currency of their youth, and not into adulthood. The glare of publicity arising from contemporaneous reporting of proceedings that themselves are highly stressful is a heavy burden even on adults, and it is sensible that children should usually be protected from that combination. But once the proceedings are over, news reports of proceedings are and always have been less likely and there is no reason to provide the same protection. In my recollection, it has never been suggested that the previous convictions of an adult defendant (or, indeed, witness if that material is admitted) recorded prior to his 18th birthday should not be published because of the [English] Act.”
The Court noted that while there may be some difficulties with the reporting restrictions afforded to child defendants, victims and witnesses ceasing automatically when a person turns 18, the Court’s task was to interpret the particular statute at hand and if a solution needed to be crafted this was the domain of Parliament. The Court found that under the English Act an order could only be made in respect of a “child or young person”, which clearly could not include the identity of adult defendants.
In our view, as a matter of principle this position also makes sense. Upon attaining majority something akin to a legal exchange takes place: children gain various freedoms they did not enjoy immediately before they turned 18 (for instance, the right to vote or to drive a car) but they also lose certain special protections expressly reserved for children.
As the Constitutional Court recently made clear, in Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development, “[c]hildren are precious members of our society and any law that affects them must have due regard to their vulnerability and their need for guidance. … [C]hildren merit special protection through legislation that guards and enforces their rights and liberties.” This type of necessary special protection of course no longer applies when the child turns 18.
The automatic lapsing of the protection also makes sense because the right to freedom of expression and the principle of open justice require that statutory restrictions on court reporting are interpreted as narrowly as possible. There is therefore a strong argument that the special protections afforded to children ought to lapse when the child turns 18.
Our Parliament has not, however, answered this question clearly and the position in South African law is now governed by the Criminal Procedure Act read together with the Child Justice Act. Section 63(6) of the Child Justice Act provides that section 154(3) of the Criminal Procedure Act “applies with the changes required by the context regarding the publication of information“.
This creates a complex question of statutory interpretation. Section 154(3) of the Criminal Procedure Act protects an accused person who is under 18 during the criminal proceedings, while the Child Justice Act applies to a person who may be over 18 during the criminal proceedings but was under 18 at the time he or she was: (a) handed a written notice; (b) served with a summons or (c) arrested; in respect of the particular offence. In certain circumstances, the Act also applies to a person who is over 18 but under the age of 21 at these relevant times (where, amongst other things, the Director of Public Prosecutor decides to deal with the matter in terms of the Act). The Constitutional Court has also held that the consequences for the criminal conduct of a child that extend into adulthood implicate children’s rights (and therefore section 28(2) of the Constitution).
Thus, one reading of the Child Justice Act is that the phrase “with the changes required by the context” means that where an offence is committed while the person is still a child, or once the Child Justice Act is deemed to apply to a particular person, then the reporting restrictions in the Criminal Procedure Act will apply until the completion of those proceedings, even if the accused is now well over 18 (and this may also apply to any appeals).
In our view the better interpretation is that while there are good reasons why the other provisions of the Child Justice Act ought to apply to someone who is now over 18, even if the offence was committed while he or she was a child (for instance the diversion and sentencing provisions in the Act), applying the reporting restrictions to persons who are presently over 18 may be too intrusive an inroad into the right to freedom of expression and the principle of open justice.
But whatever the position is where an accused attains majority during the proceedings but prior to conviction, there is a strong argument that the language of the Criminal Procedure Act is plainly only intended to apply to an accused person and do not apply once the accused person is convicted. Accordingly, where any appeal only relates to sentence then the reporting restrictions arguably do not apply. And because of the unclear phrasing of the Child Justice Act, and the fact that criminal prohibitions ought to be narrowly construed, those newspapers who have decided today to name the Griekwastad convicted murderer will therefore, in our view, have a solid legal basis to argue that this decision was justifiable.