Contempt of court—Publications concerning legal proceedings— Postponement of publication

Court of Appeal, Criminal Division
Lord Phillips CJ, Elias and Griffith Williams JJ
30 July 2007

Section 4(2) of the Contempt of Court Act 1981 (CCA 1981) permits postponement of publication of information concerning criminal proceedings, but the need for postponement cannot subsist beyond the end of the proceedings in question.

Andrew Nicol QC and Anthony Hudson (instructed by Legal Services, Times Newspapers Ltd) for the appellants.
David Perry QC and Louis Mably (instructed by the Crown Prosecution Service) for the Crown.

The proceedings arose from a trial under the Official Secrets Act 1989, ss 2 and 3. Under CCA 1981, s 4(2), the judge ordered an indefinite postponement of any reporting of a question and answer given in open court during the evidence of one of the defendants. He also made an order under s 11, in relation to evidence that he directed should be given in camera at the trial. Various publishers appealed against the orders, pursuant to the Criminal Justice Act 1988, s 159. They contended that the s 4(2) order was not necessary to “avoid a substantial risk of prejudice to the administration of justice in those proceedings or any other proceedings pending or imminent”, and that the order constituted an indefinite prohibition of publication, whereas s 4(2) only permitted postponement of publication. In respect of the s 11 order, they submitted that it prohibited publication of matter that was already in the public domain; and that it was, in any event, too wide in that it prohibited the publication of matters which might reveal matter that was subject to the in camera hearing.

LORD chief justice PHILLIPS (giving the order of the court):

It was a basic principle of the administration of justice that court proceedings should take place in public and that there should be freedom to publish reports of those proceedings. There were, however, certain circumstances in which the law recognised that restrictions on publication were justified in the interest of the administration of justice: (i) the restriction was necessary in order to ensure the fair trial of the proceedings in which the restriction was sought, or subsequent proceedings; (ii) the restriction was necessary in order to protect a person involved in the proceedings; and (iii) the restriction was necessary in order to protect the object of the proceedings, such as the protection of official or trade secrets.

The judge below held that the order under s 4(2) was necessary to avoid prejudice to the administration of justice “in those proceedings” because it was necessary to prevent the undermining of the in camera order that had been made in the proceedings. As to the second point, “postpone” meant the same as “defer” and as a matter of language, publication of facts or evidence could be deferred indefinitely.

When considering whether or not the order was necessary to eliminate the “not insubstantial risk” to the administration of justice in the proceedings he held that it was. He observed that counsel for the media “did not suggest that there was any other way to overcome the risk by some other, less restrictive means. In my view there is none”.

Counsel for the Crown accepted that the order ought to have been made under s 11 rather than s 4(2). His lordship agreed. On its natural meaning, s 4(2) was designed to enable the court to prevent the publication of the report of proceedings where the publication would prejudice the conduct of those proceedings, or specific pending proceedings. The section was designed to cater for the first of the three categories above. The section permitted postponement and the need for postponement could not subsist beyond the end of the proceedings in question.

Alternatively, it would have been open to the judge, having made it plain that the question and answer had been given in open court in breach of his in camera direction, to have made it plain that to publish the question and answer would be a contempt of court. That it would have been as it would have constituted the frustrating of an order lawfully made by the court.
Accordingly, the judge had had jurisdiction to prevent publication of the question and answer and it was proper to exercise that jurisdiction, albeit that an order under s 4(2) was not the correct way of achieving it.

The order under s 11 of  CCA 1981

Section 11 gave the judge the power to prohibit the publication of the “name or matter” that he allowed to be withheld from the public by his in camera order “in connection with the proceedings”, in so far as it appeared to him to be necessary for the purpose for which the information was withheld. 
The order made purported, however, to go further and to prohibit publication in connection with the proceedings of matter which might reveal the matter by his in camera order. Thus it would appear to cover a publication based on speculation but which did not make it plain that it was mere speculation as to the evidence that was given in camera that was wholly inaccurate. Such a publication could not fall within the wording of s 11. It would not be the publication of the name or matter withheld. Nor would prohibition be necessary for the purpose for which the name or matter was withheld, namely to prevent it becoming known to the public in the interests of national security.

That was not, however, the end of the story. Such publications would be attempts, albeit unsuccessful, to flout the order made by the court and would be seen by the public as a violation of the order of the court. It was likely that any such attempt would, itself, constitute a contempt of court at common law. In making the order that he did under s 11, the judge had had the praiseworthy object of removing from the media any uncertainty as to what they were or were not permitted to publish. His order removed uncertainty and provided the media with mandatory guidance as to how to involve any risk of being in contempt of court, but it went beyond the powers conferred by s 11.

The order would be amended accordingly.