Reporters who can spot and challenge an invalid postponement order under Section 4(2) of the Contempt of Court Act 1981 help the media to confront one of the most wide-ranging reporting restrictions on the statute book. Such orders sometimes ban reporting of an entire criminal trial for months.

The Swindon Advertiser grappled with similar issues when it was temporarily gagged from reporting that a jury had convicted four defendants of GBH as a separate trial, involving other defendants, was pending in connection with the same playground hammer attack.

Let’s start by considering precisely what power Section 4(2) gives a court. It says that in publicly-heard proceedings the court may, where it appears necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings (or in any other proceedings pending or imminent), order that reporting of the proceedings, or part of them, be postponed for as long as is necessary for that purpose.

In challenging a Section 4(2) order, the key phrases to scrutinise are therefore: “may”, “necessary”, “substantial risk”, “prejudice”, “in those proceedings” and “other proceedings pending or imminent”.

Importantly, “may” shows the court’s power is discretionary and no such order must be imposed. Unless all the other key phrases are genuinely satisfied, the court has no power to make a postponement order.

In challenging an order, the starting point is always the principle of ‘open justice’. Cases going back decades have repeatedly emphasised the common law requirement for publicly-heard proceedings to be openly and contemporaneously reportable.

The point was reiterated in the terrorism case of R v Dhiran Barot in 2006 when the Court of Appeal revoked a High Court judge’s Section 4(2) order imposed on the basis that open reporting of a sentencing hearing would prejudice the pending trial of co-defendants.

The appeal court referred to the “precious principle” of open and transparent criminal justice and said jurors should be trusted to ignore media reports.

Sir Igor Judge, President of the Queen’s Bench Division, added: “The freedom of the press to report the proceedings provides one of the essential safeguards against closed justice…In our view, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice.”

Nevertheless, there’s anecdotal evidence that some judges are resorting to Section 4(2) to impose dubious gagging orders to postpone reporting of the identity of defendants, witnesses and even relatives who are not involved in the proceedings.

In a 1997 case involving Belfast Telegraph Newspapers Ltd, Lord Justice McCollum made it clear it was inappropriate to make a postponement order to protect a defendant’s identity and welfare.

He said: “An attack on the accused by ill-intentioned persons cannot be regarded as a natural consequence of the publication of the proceedings of the court and the danger of its occurrence should not cause the court to depart from well-established principles.”

And earlier this year, following an invalid reporting restriction imposed by Judge McKinnon at Croydon Crown Court, the Court of Appeal confirmed that Section 4(2) did not empower the court to impose a postponement order to protect the identity of a sex offender’s children who were not involved in the case.

The appeal court said such an order was “inapt” simply because (think of the key words, above) it was not “necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings”.

Postponement orders can also be challenged if they lack the required precision. A Practice Note issued by Lord Lane CJ in 1982 requires any Section 4(2) order to state “its precise scope, the time at which it shall cease to have effect, and the specific purpose of making the order”.

Merely stating that an order will last “until further order” is insufficient. Where any of the above flaws are apparent, reporters should seek to make brief written or oral representations to the court. If that doesn’t work, instruct your lawyers to submit written representations or, if necessary, instruct counsel.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]