Monday, 18 June 2018

Reporting restrictions and the importance of open justice

Recently, Stephen Yaxley-Lennon (aka 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:

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 [1913] 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 [1991] 1 WLR 4.

The Court of Appeal has held that the reporting restriction ought not to have been made - [2018] 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.

Some problems:

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 trial."

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.


  1. Does the Public interest in reporting proceedings in Court outweigh the interests/privacy and/or right to anonymity of the alleged victims in case involving and form of sexual abuse which could easily be transgressed as details emerge during any Trial? Referring to the recently concluded Trial of 8 men at Oxford which was also under Reporting Restrictions until the Trial ended, were Proceedings in addition effectively protected from being impeded by the likes of Stephen Yaxley-Lennon with his invasive, provocative and damaging live-broadcasting of generic statements and inaccurate information?

  2. Has the judgement for the Yaxley-Lennon conviction in Leeds been released yet? If not, could you speculate as to why?

    1. As at 6 July 2018 it has not been published. Don't know why.