In an important decision, the Court of Appeal has reminded judges of the important role of the press in reporting proceedings and why that freedom of expression must only be fettered as a last resort.

The case concerned reporting restrictions made in the case of a surgeon on trial in Worcester Crown Court.

Sudip Sarker was charged with one count of fraud, the prosecution alleging that in 2011 he had dishonestly exaggerated his professional experience to obtain an appointment as a consult surgeon.

That case was solely concerned with his representations before taking up the appointment; however concerns over his competence while in the role had led to an investigation into events including six incidents and a death.

Mr Sarker was suspended by the Royal College of Surgeons and dismissed in 2015.

These events had been reported in the media, as it was widely agreed they should have been.

On 22 January 2018, the first day of the criminal trial, counsel for the defendant applied for an order under Section 4(2) of the Contempt of Court Act 1981 postponing reporting of the trial until the conclusion of the trial, expected to last ten days.

The application was made at the end of general pre-trial ‘housekeeping’ and was based on a concern that contemporaneous reporting of the trial would include links to the earlier stories.  If the jury clicked through, counsel argued, they would encounter prejudicial material.

The judge made the requested order, with the effect that reporting of the trial was prohibited until the jury returned its verdict.

On 26 January 2018, mid-way through the trial, the BBC applied unsuccessfully to discharge the restriction. The judge dismissed the application and the restrictions continued until the conclusion of the trial on 2 February 2018, when the guilty verdict was reported.

In considering the request, the judge noted that the trial was only expected to last a further four days, deeming that this meant the interference with the open justice principle was limited.

By the time the Court of Appeal case came to be heard on 23 May 2018, the trial had concluded and the restriction had fallen away. Nevertheless, the BBC sought to challenge the order as a matter of principle.

The Court of Appeal agreed with the BBC, finding that the section 4(2) order should not have been made. In coming to this conclusion, the Court helpfully set out the following reminder of the principles:

1. A party seeking reporting restrictions must comply with the Criminal Procedure Rules. This means that they must apply for the order “as soon as reasonably practicable“, must notify every other party to the case and must explain what power the court has to make the order and why an order is necessary.
2. In section 4(2) cases, the explanation as to why the order is necessary must address (i) how contemporaneous fair and accurate reports of the trial will cause a substantial risk of prejudice; and (2) why a postponement order would avoid the identified risk of prejudice.

The Court acknowledged that even where a reporter is in court, they are unlikely to be in a position to immediately respond to an application. Judges should therefore consider whether an application should be adjourned to give proper notice to the media.

The court further noted that the practical effect of even a short postponement order is to reduce the chances of any reporting at all, highlighting that in the modern era, ‘stale news is no news’.  Postponement orders therefore risked the damaging effect on the important public interest in reporting proceedings in the courts.

In coming to its conclusion, the court noted that at the heart of the restriction was the fear that, contrary to the usual directions, the jury would embark on a search for further material and allow their views to be prejudiced.

There was however, the court said, “no reason to suppose that they would do so and a postponing order pursuant to section 4(2) was anyway an impermissible mechanism to reduce any such risk“.

It was noted before the Court of Appeal that at the time of the original application for restrictions, “all concerned were seeking in good faith to protect the fairness of the trial“.

The case illustrates that even with the best intentions, bad orders can be made and can and should be challenged.