Tommy Robinson) was committed to prison for contempt of court in that he pleaded guilty to breaching a reporting restriction made in connection with a trial in the Crown Court sitting in Leeds. The restriction was a "postponement order" made under Section 4(2) of the Contempt of Court Act 1981. As defendants arrived for their trial, Mr Robinson broadcast via Facebook Live. His broadcast lasted for over an hour. This previous post looked at the basics of the law on contempt.
When Mr Robinson was sentenced, the judge imposed a reporting
restriction relating to the sentencing. The purpose of this was to try
to avoid any prejudice to the on-going trial. Following
representations by the media, the restriction relating to Mr Robinson
was lifted - Press Gazette 29th May - but not the restriction relating to the on-going trial. At the time of writing, the judge's reasons for the committal have not been published.
Open justice is an important principle of the common law. It follows that fair and accurate media reporting of court cases is essential. Linked to that is the need for the judiciary to give clear reasons for their decisions and to deliver judgments in open court. Open justice is not however an absolute principle and exceptions are recognised by the law and those include reporting restrictions imposed under the Contempt of Court Act 1981.
The default position is that all proceedings in courts and tribunals are conducted in public. Media reports of legal
proceedings are an extension of the concept of open justice. It is by media reports that citizens can be informed about what
takes place in most of our courts. The media serve both as the eyes and ears of the wider public and also
as a watchdog. Full contemporaneous reporting of criminal trials (and other
legal proceedings) promotes public confidence in the administration of
justice and the rule of law.
On a practical level, the public nature of court hearings (and
media reports of them) fulfils several objectives: (1) it enables the
public to know that justice is being administered impartially; (2) it
can lead to evidence becoming available which would not have been
forthcoming if reports are not published until after the trial has
completed or not at all; (3) it reduces the likelihood of uninformed or
inaccurate comment about the proceedings; and (4) it deters
inappropriate behaviour on the part of the court and others participating in the proceedings.
Reporting restrictions orders are derogations from the
general principle of open justice. They are exceptional, require clear
justification and should be made only when they are strictly necessary
to secure the proper administration of justice. Any derogation from open justice must be established by clear and cogent evidence: Scott -v- Scott  AC 417, at 438–439 per Viscount Haldane LC.
Reporting restriction in case against Sudip Sarker:
In February 2018, as reported at BirminghamLive, Mr Sudip Sarker was sentenced to 6 years imprisonment for an offence against the Fraud Act 2006 section 1 (and also section 2). He had misrepresented his qualifications when he applied to be a surgeon at Alexandra Hospital in Redditch.
At Mr Sarker's trial, the trial judge granted a defence application for a section 4(2) reporting restriction. The order ceased to have effect when the trial ended. However, the BBC challenged the restriction as permitted by the Criminal Justice Act 1988 section 159 . Such an application can be made even after the reporting restriction has been discharged - ex parte Central Independent Television  1 WLR 4.
The Court of Appeal has held that the reporting restriction ought not to have been made -  EWCA Crim 1341- (Lord Burnett CJ, Stuart-Smith LJ and Nicklin J).
The defence fear, at Mr Sarker's trial, was that contemporaneous online reports of the trial could have contained links to other stories containing material which might have had a prejudicial affect. The trial judge - His Honour Judge Juckes QC - accepted that possibility and made the order.
The Court of Appeal looked in some length at the relevant law and considered the steps to be taken by judges when section 4(2) orders are requested. On the facts of Mr Sarker's case, the court concluded - at para 37:
"Fair and accurate contemporaneous
reporting of the trial would not have given rise to any risk of
prejudice. The perceived risk arose from an assumption that a fair and
accurate contemporaneous report would contain links to earlier
irrelevant and prejudicial material. There was no reason to make that
assumption, but in any event an order under section 4(2) would not
prevent the republication of earlier prejudicial material or signposting
it via links. It should not have been used to guard against parasitic
damage to the trial. As we have noted, to follow either course would put
a publisher in breach of the strict liability rule. At the heart of
the concern articulated by the defendant's counsel was a fear that,
contrary to the judge's direction, echoed in material given to the jury
in writing, members of the jury might embark on a search for further
material. There was 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.
The court noted that local media - " for decades the mainstay of reporting the work of our
courts" - can be reluctant to challenge reporting restriction because of the expenditure involved in doing so (para 25) and "even if a challenge is launched,
the time constraints of the relevant trial may mean it is not heard
until it is too late to allow any contemporaneous reporting of the
At para 26 the court noted that "judges are
urged to grant an order postponing reporting because it is expected that
the trial will last only for a short period." The court said that - "Postponement orders, even if only of short
duration, are likely to have a damaging effect on the very important
public interest in reporting proceedings in courts." The practical effect
of even a relatively short postponement order is likely to reduce the
chances of any reporting at all. In order to publish a postponed report
of a trial, the media organisation would have to commit the resources of
a journalist attending the trial in the certain knowledge that only a
fraction of what would have been published in daily reports will be
likely to be published when the order is lifted. In the modern era of
communications, it is truer than ever that 'stale news is no news.'
The astute reader will probably spot that this observation is likely to be the practical result of the reporting restriction on the linked trials at Leeds.
Careful adherence to the steps in this judgment ought to reduce the risk of any postponement orders being improperly made. Judges will need to give very careful scrutiny to any application for reporting restrictions.