Regrettably it happens all the time.
A series of linked trials is due to be heard one after the other, and a judge slaps a blanket ban on press reporting until the final case is concluded – purportedly under Section 4(2) of the Contempt of Court Act.
Court reporters may challenge the order, perhaps backed by a lawyer’s letter, but if the judge won’t budge, open justice is often shelved for months while the State happily prosecutes without publicity.
So it is satisfying when the media share the costs of an appeal and successfully overturn a wrong-headed postponement order.
Last week the Court of Appeal lifted one such order in a case that otherwise would have gone unreported for at least six months.
It concerned the alleged murder of 15-year-old Sofyen Benamouadden, who was stabbed to death at Victoria Station, London, last March after apparently being chased by a group of assailants.
A total of 20 defendants, aged between 15 and 18, have been charged and are due to be tried in a sequence of three trials.
The first trial was expected to re-start this week after the initial jury was discharged for legal reasons. It could last several months.
The other two were listed to start in April and June this year, and could also last for months.
Witnesses to the tragic incident will have to give evidence in the three separate trials.
The trial judge at the Old Bailey made a S.4(2) postponement order banning press reporting until the end of the third trial. He feared witnesses’ evidence could be affected by contemporaneous press coverage and by the stress and hostility they might experience.
The Crown Prosecution Service argued the gag was needed to avoid jurors in the second and third trials being prejudiced by coverage of the first.
But these arguments did not cut the mustard in the Court of Appeal when a group of media organisations appealed.
Their QC said the defendants and their associates already knew the identity of prosecution witnesses, and would not need to read press reports to learn that.
There was no basis for saying contemporaneous press reporting would lead to the feared consequences, and the judge had not considered whether any risk to the administration of justice could be handled with measures less restrictive than a blanket ban on reporting the trials for months.
Lifting the S.4(2) order, the Lord Chief Justice, Lord Judge, acknowledged reporting might bring pressure on witnesses but anyone in court would see the witnesses and hear their evidence anyway, so postponing reporting would not solve the problem.
Media Lawyer quoted him as saying: “For all the reasons encapsulated in the two short words ‘open justice’, an order is only to be made when it is necessary for the purposes of ensuring justice is fairly and properly done in the cases in which an order has been made.
“Without minimising the burden and difficulty faced by witnesses, the use of S.4(2) for the purposes of alleviating the difficulties of giving evidence is rarely appropriate.”
He said the concerns could be addressed more appropriately by the use of narrower orders aimed at protecting vulnerable witnesses, such as under S.39 of the Children and Young Persons Act
Court reporters should note that the lawfulness of any S.4(2) postponement order is to be analysed under the three-part test set down a decade ago in the Court of Appeal’s ruling in Ex parte Telegraph Group plc.
First, unless contemporaneous reporting will create a “not insubstantial” risk of prejudice to the administration of justice in the relevant proceedings, no S.4(2) postponement order may be imposed.
Second, even if the requisite risk is present, could it be dealt with by a measure less restrictive than a postponement of reporting? If so, again no S.4(2) order may be made.
Finally, even if the first two tests are met, a postponement order may still not lawfully be made if tolerating the risk of prejudice would be the lesser of the two evils when weighed against the evil of departing from open justice.
The Benamouadden case is a reminder that circumstances in which courts may lawfully impose a S.4(2) gagging order will arise only rarely.