A successful reporting restriction challenge has shown the limits of judges’ powers to gag media coverage of criminal cases.

Mr Justice Mackay, presiding over a trial at Woolwich Crown Court, was persuaded to do a U-turn and lift a wide-ranging reporting restriction he had imposed just days earlier, purportedly under Section 4(2) of the Contempt of Court Act 1981.

Disturbed by content he had seen on an evening TV news programme, the judge initially made an order in the following terms: “There is to be no publication in any medium of material of any kind relating to this trial, unless and until it has been put to the jury in court, until after verdicts have been reached.”

The case involved terrorism charges arising from an alleged bombing attempt in London and an attack on Glasgow Airport.

The judge’s order was clearly an attempt to reduce media reports to merely the information put before the jury.

Crown Court judges have various gagging powers but they do not have power to order that.

They have power, for example, under Section 11 of the 1981 Act, to order a name or other matter to be withheld from the public where the court has previously allowed such information to be withheld from the public in proceedings before the court.

And as to identifying individuals, they have a power under Section 39 of the Children and Young Persons Act 1933 to prohibit the identification of any under-18s who are concerned in the proceedings as witnesses or victims.

But Crown Court judges (and magistrates’ courts for that matter) have no power to impose a general injunction or postponement as to what may, or may not, be reported about a particular case.

That was confirmed earlier this year in the case of R v Croydon Crown Court, ex parte Trinity Mirror (2008), which saw another judge’s errant reporting restriction overturned.

Crown Court judges only have power, or “jurisdiction”, to restrict reporting within certain well-defined limits.

Section 4(2) of the 1981 Act, which Mr Justice Mackay had purported to rely on, merely states that a 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 the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary [emphasis added].

Section 4(2) does not say that a court may postpone reporting of general information that the media have sourced from elsewhere, outside the proceedings.

Freedom to report such background information is governed by the strict liability rule of contempt, under Section 2 of the 1981 Act.

As counsel for the group of newspapers and broadcasters that successfully challenged Mr Justice Mackay’s invalid order pointed out, responsibility for avoiding the publication of material which may prejudice the outcome of a trial under the strict liability rule lies squarely with the press.

The barrister reminded the judge that in an earlier terrorism case, R v Barot (2006), the Court of Appeal made it clear that newspaper editors and broadcasters should be trusted to fulfil their responsibilities under the strict liability rule and exercise “sensible judgment” about the publication of material that may interfere with the administration of justice.

Of course, the media must also ensure that reporting does not constitute “serious misconduct” under the Costs in Criminal Cases (General) (Amendment) Regulations 2004, or else risk being ordered to pay substantial wasted costs if a trial has to be aborted or moved.

Nevertheless, Mr Justice Mackay’s U-turn, on 13 October 2008, is a reminder that judges sometimes make basic mistakes and that their reporting restrictions can be successfully challenged.

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