Stephen Yaxley-Lennon (aka Tommy Robinson) is today entering the second week of his 19 weeks sentence for contempt of Court, and whilst much has been written about the Divisional Court’s decision, it was the Judges’ comments about Reporting Restriction Orders which catch the legal eye.

Unlike Yaxley-Lennon (who falsely claimed to have been engaged in journalism at the time of his contempt), professional journalists know only too well that if a Court makes an order that a case is not to be reported, then it is not to be reported. Journalists may not like a particular order, but they know that until it is varied or revoked, it has to be obeyed.  After all, the law is the law.

But even though journalists have a good understanding of their obligations, the Divisional Court gave us some useful reminders, especially regarding postponement orders made under section 4(2) of the Contempt of Court Act.

Dame Victoria Sharp began by reminding us that:

“An order under S.4(2) cannot prohibit reporting altogether; it can only postpone it for such period as the Court thinks necessary to avoid the substantial risk of prejudice that has been identified. These powers are often used where a series of inter-related trials takes place, to avoid earlier trials infecting later ones.”

She then repeated the principle that even if an order has been wrongly made, it has to be obeyed unless or until it is revoked or varied:

“…….orders of the court must be obeyed whilst they remain in force; disobedience to an order will therefore amount to a breach, capable of amounting to contempt, even if on later examination it proves to have been wrongly made.”

But to my mind, the most important point made by Dame Victoria concerned the practicalities which face journalists on a day-to-day basis: the duty to find out about, and comply with, Court orders lies with journalists and publishers. Whilst the Court has a duty to assist journalists when they make enquiries, there is no obligation on the Court it be proactive when it comes to publicising the existence of an order.

On this issue, she was unequivocal:

“It would be impracticable to impose responsibility on the Court to ensure that everybody who is intended to be     bound had actual knowledge of the terms of an order, and it would create a perverse incentive for reporters to avoid acquiring actual knowledge”.

And to emphasise the point, she said that the practicalities are reflected in the Criminal Practice Directions 2015, which require Court staff to help those who ask, but place the duty of enquiry on those who seek to report proceedings.

Dame Victoria then moved on to address what she called “the mental element”. Again, she was very clear:

“It is not necessary to prove the alleged contemnor had actual knowledge of the terms of a S.4(2) order …. It is enough to establish subjective recklessness. Someone who knows or suspects that an order is in place but does not know its terms is clearly put on enquiry.” 

In many ways, the Court’s comments regarding RROs generally, and S.4(2) postponement orders in particular, tell us nothing new.

But as it’s been some time since a contempt case reached the High Court, Yaxley-Lennon has provided a service to journalists by being the vehicle for a senior judge to give a useful, if sobering, résumé of the law.

This was an exceptional case, and no professional journalist would ever behave like Yaxley-Lennon did. But in an era of intense budgetary pressure which has seen the number of full-time Court reporters reducing across the country, the reminder that news desks and reporters must be absolutely certain that a case can be reported, is helpful.

But take heart – the judgment should not be seen as a shot across the bows of Court reporters and publishers. Why?  Because Dame Victoria took the opportunity praise of Court reporters and their newsdesks:

“Breaches of these orders by media organisations are extremely rare. This is doubtless because professional journalists reporting on legal proceedings are generally well-informed, careful, and well-advised…….”

(I particularly like the “well advised” comment – but then I would say that, wouldn’t I?)