The Court of Appeal has discharged an order the effect of which would have been to postpone the reporting of an important criminal case for several months. The case relates to the shocking murder of a 15-year-old boy last year in front of hundreds of commuters during the rush hour at London’s Victoria Station. Following the lifting of reporting restrictions, the case has been widely reported, including here and here.

The judge hearing the case at the Old Bailey, described by the Lord Chief Justice at the appeal hearing as a highly respected and experienced trial judge, had imposed an order under s.4(2) of the Contempt of Court Act 1981, which postponed all reporting until the final outcome of all related trials (for case management purposes the trial has been split into three separate trials). The reason given by the judge for making such an order was that fair, accurate and contemporaneous reporting of the proceedings would create a substantial risk of prejudice to the administration of justice due to:

1. The risk that young witnesses due to give evidence in subsequent trials might encounter a degree of hostility, which might in turn affect their ability or willingness to give further evidence; and/or

2. The risk that, in reading accounts of their own evidence or that of another witness, young witnesses might be tempted to alter their own accounts.

The five publishers of the Daily Mirror, Daily Telegraph, Daily Mail, Guardian and Independent appealed the order on the following grounds:

(i) there was no basis for concluding that, if witnesses were to encounter hostility, this would be by reason of the publication of contemporaneous reports of the trials;

(ii) there was no basis for concluding that, if witnesses were to encounter hostility, this would risk prejudicing the administration of justice in the proceedings;

(iii) there was no basis for concluding that, if witnesses were to change their evidence, this would be by reason of the publication of contemporaneous reports of the trials;

(iv) there was no basis for concluding that, if witnesses were to change their evidence, this would risk prejudicing the administration of justice in the proceedings; and

(v) the judge had failed to give proper consideration to the questions of a) whether a postponement order would eliminate any risk to the administration of justice; b) whether any risk could satisfactorily be overcome by some less restrictve means; and c) whether the degree of risk contemplated should be regarded as tolerable in the sense of being the “lesser of two evils” as regards the rights of the media under Article 10 ECHR, and the interest of a democratic society in ensuring that the press can freely report criminal trials in progress.

The judgment of the Court of Appeal was given in open court on Tuesday 25 January 2011. It allowed the appeal and thereby quashed the s.4(2) order. The Lord Chief Justice made the following points in his judgment:

1. In terms of the learned trial judge’s concerns in respect of young witnesses being subject to hostility and possibly changing their own account of events, as a result of the reporting of their evidence: the same effect could be caused by those who attend Court and who know what is said. Anyone present at trial would have no difficulty in identifying witnesses and their evidence. This risk is not therefore removed by the s.4(2) order. The risk of hostility towards witnesses is already inherent in this case.

2. In considering whether there is a real risk that reporting may lead to witnesses modifying their accounts because they may be subject, consciously or not, to “memory adjustment”: this presupposes that witnesses will read all media reports and that the media will publish all evidence, both of which are doubtful. This problem is not new and the solution is not easy but to the extent that witnesses’ evidence changes they can be cross-examined about that. In reality, these concerns would be common to the reporting of any high-profile case. There is nothing specific about this case that makes it different, at least as far as reporting is concerned. The use of a s.4(2) order for the purposes of alleviating the strain of giving evidence is rarely appropriate, even where there are multiple trials.

3. The Court stated that it had no jurisdiction to make lesser orders protecting the identity of the five young witnesses in the first trial. However the Court invited the press to exercise its discretion not to identify those witnesses until such time as the trial judge has had an opportunity to consider any relevant applications.

The Court of Appeal’s judgment has not, so far as we know, been transcribed or reported elsewhere. We will provide a link to any transcript or report that may become available.