The principle of open justice has been ardently promoted in our society for many years, as was confirmed by Lord Hewart in R v Sussex Justices, ex parte McCarthy who said that “it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
The default position in the UK is that the administration of justice should take place in the public arena and be subject to public scrutiny. As is fully acknowledged in the jurisprudence of the ECHR the media has a positive duty to act as the public’s “watchdog” and, in particular, the media’s ability to report upon what takes place in our courts is considered highly important. However it is recognised that there are certain exceptional occasions where the media’s freedom to report has to be restricted and it is this delicate balancing exercise of determining the scope of such necessary reporting restrictions which remains a thorny issue of debate.
The reality is that the law in this area is becoming increasingly complex, as the reporting of court cases is regulated by a myriad of reporting restrictions which, if breached, are punishable as contempt and can therefore have severe consequences (imprisonment and/or an unlimited fine) for the editor, publisher or media owner concerned. It is therefore important that journalists and media organisations understand the scope of the possible restrictions and that, in making orders restricting the freedom of the press, the judiciary stay within that recognised and intended scope.
Since its implementation, s.4(2) of the Contempt of Court Act 1981 (the “Act”) has been frequently used to prevent journalists from reporting events that take place in court during a trial. Such orders are a blanket ban on the reporting of a trial contemporaneously, as reporting is postponed to a later date. Recently, however, questions have arisen as to whether the orders made pursuant to this section have gone beyond its intended scope.
S.4(2) of the Act allows any court to postpone publication of the reporting of all or any part of proceedings if it appears necessary to do so to avoid a substantial risk of prejudice to the administration of justice in those or any other pending or imminent proceedings. The postponement can be for such period as the court thinks necessary for this purpose.
These orders must not be made where it is reasonably possible to achieve the court’s objectives by alternative means (for example, by giving the jury suitable directions, by postponing or transferring a subsequent trial or by using another, less arbitrary, type of reporting restriction). In addition a s.4(2) order cannot be indefinite and must state what the trigger is which enables the proceedings to be reported.
These orders are commonly used where a defendant faces a series of consecutive trials, where a defendant has pleaded guilty to one charge but there is to be a trial of the remaining charges, where one accused has been found guilty but there is still to be a trial of a co-accused, where matters are raised in court in the absence of the jury or where there is a hearing of an interim matter before trial. For example, this legislation was used in the case of Cristiano Ronaldo v Telegraph Media Group Limited. Here Mrs Justice Sharp made and continued an order pursuant to s.4(2) of the Act that there could be no reporting of any hearing relating to an interim application by TMG that the action be stayed as an abuse of process of the court, until after the trial of the action or after the litigation had otherwise come to an end. Mrs Justice Sharp was concerned that certain matters might be mentioned during the hearings of the interim application that it might not be appropriate for a jury to know about. Another example is the case of R v G(G), B(S) where Lord Justice Hughes permitted only a summary of his main judgment to be reported and made a s.4(2) order in relation to his main judgment until further order of the court. His reasoning for making such a postponement order was that it was necessary because there were some people still due to face trial for related allegations and that any publication of the more detailed judgment would cause a substantial risk of prejudice to the administration of justice in those trials.
Interpreting the scope of s.4(2) of the Act
In considering the application of s.4(2) of the Act, courts are faced with the dilemma of balancing the need for the freedom of press and the public’s right to have access to accurate reports of court proceedings with the need to preserve the administration of justice and, in turn, a defendant’s right to a fair trial.
A number of orders have been made which were beyond the intended scope of s.4(2). For example in the recent case of Re MGN Ltd & Ors the Court of Appeal discharged a s.4(2) order imposing reporting restrictions in relation to a high profile murder trial on the basis of the possibility of prejudice to young witnesses in subsequent trials. The court held that the trial judge had erred in imposing the blanket restriction and stated that such an order was rarely appropriate in trying to alleviate the various problems associated with giving evidence.
Appealing s.4(2) orders
A s.4(2) order may be appealed under s.159 of the Criminal Justice Act 1988 (“CJA”) which states that a person aggrieved may appeal to the Court of Appeal, if that court grants leave, against an order under section 4 [or 11] of the Act made in relation to a trial on indictment if they feel either that the reasoning given for the order went beyond the scope of the legislation or the court was wrong in its reasoning.
However the media is not always successful in appealing s.4(2) orders. In the case of R v Sherwood s.159 CJA was used by Telegraph Group Plc to appeal a s.4(2) order postponing any reporting of a murder trial until after the conclusion of another trial arising out of the same or closely related facts. On the specific facts of the case, the severance of the trials had been necessary in the public interest and any media reports would have undermined the aim of such severance. As such it was held that a s.4(2) order was unavoidable in order to ensure that the defendants in the second trial had a fair hearing.
In Sherwood, the Court of Appeal, whilst dismissing the appeal, brought together a number of authorities and considered the impact of the Human Rights Act 1998 in order to set out a three stage test that any judge contemplating the imposition of reporting restrictions is required to consider:
(1) The first question is whether reporting would give rise to a ‘not insubstantial’ risk of prejudice to the administration of justice in the relevant proceedings. If not, that will be the end of the matter.
(2) If such a risk is perceived to exist, then the second question arises: would a section 4(2) order eliminate it? If not, obviously there could be no necessity to impose such a ban. Again, that would be the end of the matter. On the other hand, even if the judge is satisfied that an order would achieve the objective, he or she would still have to consider whether the risk could satisfactorily be overcome by some less restrictive means. If so, it could not be said to be ‘necessary’ to take the more drastic approach: See Ex parte Central Television plc  1 WLR 4, 8 D-G per Lord Lane CJ.
(3) Suppose that the judge concludes that there is indeed no other way of eliminating the perceived risk of prejudice: it still does not follow necessarily that an order has to be made. The judge may still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being ‘the lesser of two evils’. It is at this stage that value judgments may have to be made as to the priority between ‘competing public interests’: see Ex parte Telegraph Group plc  1 WLR 980, 986 B-C.”
Thus since Sherwood, courts have been obliged to consider this three stage test and to give clear reasons for its determination at each stage. Furthermore when assessing the impact of reporting the court must assume that reporting will be fair, accurate and impartial (in the matter of B).
Alternatives to the use of s.4(2) orders
As part of the second stage in the Sherwood test, the court must consider whether the perceived risk could be satisfactorily overcome by some lesser means. This is a crucial consideration, as there are a number of other options open to the court which may well achieve the objective of overcoming the risk of prejudice.
Alternative solutions often exist. For example, in Re MGN Ltd it was held that the s.4(2) order was unnecessary and that the problem of providing protection to vulnerable young witnesses could be more appropriately resolved by other orders. The matter was therefore remitted to the trial judge for further consideration of what lesser orders may be necessary. In the case of Re Times Newspapers Ltd and others it was held that the original order should not have been made under s.4(2) but instead under s.11 of the Act as, on its natural meaning, s4(2) was designed to enable the court to prevent publication of the report of proceedings where the publication would prejudice the conduct of those proceedings, or specific pending proceedings. The section only permitted postponement and the need for postponement could not subsist beyond the end of the proceedings in question.
In addition to s. 11 of the Act, which provides for anonymity orders, courts have a number of other solutions at their disposal. For example, defendants or witnesses under 18 years of age can be protected by s.39 of the Children and Young Persons Act 1939. Adult witnesses can be afforded special protection under s.46 of the Youth Justice and Criminal Evidence Act 1999 and witness anonymity orders can be made under part 3 of the Coroners and Justice Act 2009. Additionally there are a number of specific restrictions that apply in relation to sexual offences.
Finally, as a general solution, the court should trust editors to fulfil their responsibilities and exercise their careful judgment. Editors know that if they publish information during a trial which might prejudice a jury, such as inflammatory information that may change a juror’s mind, then they will be in contempt of court. This should be deterrent enough.