Every erroneous reporting restriction that the media are willing to appeal gives reporters and judges an important steer.
The latest appeal, by Times Newspapers Ltd and other publishers, concerns gagging orders imposed in an official secrets trial at the Old Bailey under S.4 and S.11 of the Contempt of Court Act 1981 (‘the Act’).
It coincides with an announcement by the Judicial Communications Office that guidelines on reporting restrictions are to be re-issued to Crown Court judges, following disquiet about recurrent errors.
In the recent trial of two men over the leaking of a secret memo between George Bush and Tony Blair, Mr Justice Aikens imposed an order, purportedly under S.4(2) of the Act, postponing indefinitely any reporting of a question and answer given in open court during the evidence of one defendant.
The prohibition was expressed to apply “until further order”. Regrettably, this type of imprecise and inappropriate S.4(2) restriction is frequently imposed by errant judges across the country.
The trial judge also gagged the press with an order under S.11 of the Act – a section which provides that certain matters may be permanently withheld from publication – in relation to a list of evidence that he had directed should be given to the court in private.
The Official Secrets Act 1920 permits a court to exclude the press where publication of evidence to be given would prejudice national safety. Accordingly, the trial judge excluded the press from part of the trial that dealt with a particular document. But by mishap, a question was later put and an answer was made on that topic in the publicly-heard part of the proceedings.
The judge had immediately imposed an order under S.4(2) postponing publication of the question and answer. He repeated the order, with indefinite effect, at the end of the trial.
When initially challenged on the point, Aikens J said the word “postpone” in S.4(2) meant the same as “defer”, so publication could therefore be deferred indefinitely.
The Court of Appeal disagreed. It quashed the S.4(2) order.
Lord Phillips, the Lord Chief Justice, said: “The section permits postponement, and the need for postponement cannot subsist beyond the end of the proceedings in question.”
First blood to the media. However, the appeal court’s approach to the S.11 gag was less straightforward.
Section 11 states that where a court “allows a name or other matter to be withheld from the public”, it may prohibit publication of that matter permanently.
A key media objection to the trial judge’s S.11 order was that it prohibited publication of information that was already in the public domain (albeit by mistake) from the public part of the proceedings.
Previous case law held that there is no power under S.11 to gag publication of information that has not been “withheld from the public” and is in the public domain.
It appears the appeal court did not see this as a case where the trial judge had failed to allow the information to be withheld from the public. He had given a direction that certain evidence be withheld and given in private, then as a result of a plain mistake, some of it had slipped out into the public domain in open court.
In short, the media’s challenge on the public domain point was unsuccessful. No doubt the fact that the particular information was an official secret, for which there were strong policy reasons for securing a gag, also served to frustrate the media’s technical argument on this public domain point.
However, Lord Phillips did rule that the ambit of the S.11 order was too wide. It purported to ban the publication of material which “would or might” [our emphasis] reveal the specified secret evidence. It therefore “went beyond the powers conferred by S.11”.
The Court of Appeal deleted the word “might” from the order, so the media at least achieved some success regarding the S.11 order.
Nevertheless, the appeal court made it clear that any media report which might reveal the secret evidence by speculating, and not making it clear that it was mere speculation, would be an attempt to flout the trial judge’s order to exclude the press from the private part of the proceedings, and would therefore be likely to constitute a contempt of court contrary to common law in any event.
The case is also of interest because it highlights the ambit of S.12(1)(c) of the Administration of Justice Act 1960, which states that it is automatically a contempt of court to publish information relating to court proceedings for which a court has sat in private for national security reasons.
Solicitor Nigel Hanson is a member of Foot Anstey’s media team.