Law Report: Press can be heard before restriction of reporting: Regina v Clerkenwell Stipendiary Magistrate, Ex parte The Telegraph plc and others. Queen's Bench Divisional Court (Lord Justice Mann and Mr Justice Leonard). 15 October 1992

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A magistrates' court, when considering whether to make or continue a reporting restriction order under section 4(2) of the Contempt of Court Act 1981, has a discretionary power to hear representations from the Press. The court would ordinarily exercise the power as it would be assisted by a single representative view from the Press.

The Divisional Court remitted the matter of the making of a reporting restriction order to Christopher John Bourke, the metropolitan stipendiary magistrate at Clerkenwell magistrates' court, for his reconsideration.

The Serious Fraud Office was investigating the affairs of Mr X and had charged him with offences. On 15 July 1992, the SFO laid an information alleging that Mr X had committed an offence, contrary to section 2(13) of the Criminal Justice Act 1987, of failing without reasonable excuse to comply with a requirement under section 2(2) to answer questions relevant to the investigation.

On an application by Mr X, supported by the prosecutor, the stipendiary magistrate made an order under section 4(2) of the 1981 Act prohibiting any publication of the section 2(13) proceedings. The applicants, The Telegraph plc, Guardian Newspapers Ltd, Newspaper Publishing plc, The Financial Times Ltd, and Times Newspapers Ltd, were of the opinion that the section 2(13) proceedings against Mr X were a matter of public interest and that a report of them would not involve a substantial risk of prejudice to the administration of justice to the proceedings of the earlier offences charged against Mr X. They wished to make representations to the magistrate.

The magistrate decided that the court had no power to hear representations from the applicants and therefore declined to hear representations as to the discharge of the section 4(2) order, which was continued. The applicants applied for judicial review of the magistrate's decisions.

Lord Williams of Mostyn QC, and Andrew Nicol (Simon Olswang & Co) for the applicants; Michael Hill QC, and Isobel Ascherson (Russell Jones & Walker) for Mr X; Nigel Pleming QC, and Paul Garlick (Treasury Solicitor) for the SFO.

LORD JUSTICE MANN said that the public had a legitimate and important interest in legal proceedings held in public and was entitled to reports of all such proceedings. Not all proceedings were reported but an order under section 4(2) necessarily inhibited the provision of reports and thus inevitably prevented the satisfaction of the important public interest. Accordingly a judge or magistrate who was asked to make an order might be presented with the need to perform a balancing exercise, as described in R v Beck, Ex p The Daily Telegraph (1991) 94 Cr App R 376.

There was no express provision in regard to who could make representations as to the making or continuance of a section 4(2) order. It was the practice of judges in the Crown court to hear any representations which the Press desired to make in regard to a section 4(2) order. That practice was recognised by the Court of Appeal in Beck.

The advantages of it were plain. The prosecution and the defence would frequently share as a prime concern the need to protect the integrity of the present and future proceedings and an application was often supported or not opposed by the other party. The interest which an order would adversely affect was best represented by the news media serving in their capacity as the eyes and ears of the public. They could argue that there was really no necessity or no substantial risk, or that the public interest in knowing should be paramount in the circumstances.

A magistrates' court was a creature of statute and enjoyed only such powers as were expressly or by implication given to it by statute. However, the confined terms in which locus standi was granted before a magistrates' court was not determinant of the issue before the court.

The media did not seek a right to be heard on the issue in the proceedings. They asked that they should be the subjects of a power to hear on consideration of reporting restrictions. There was such a power in any court which was contemplating the exercise of powers under section 4(2).

It was implicit in the enactment of section 4(2) that a court contemplating its use should be enabled to receive assistance from those who would, if there was no order, enjoy the right of making reports of the proceedings before the court. They were the best qualified to represent that public interest in publicity which the court had to take into account when performing any balancing exercise to be undertaken.

The need properly to operate section 4(2) required that a court should be able to receive the best assistance available when considering the curtailment of the freedom to report. The magistrate was wrong when he decided that he had no power to hear the applicants. A declaration would be granted that he had a power to hear the applicants.

The power was a discretionary one. The occasion and manner of its exercise were matters for the court invested with the power, but it was expected that the power would ordinarily be exercised when the media asked to be heard either on the making of an order or in regard to its continuance.

The power would ordinarily be exercised because the court could expect to find assistance in representations from the media. In practice it would be convenient if the Press were able to present a single view, so avoiding any need for the court to restrain repetition.

The matter would be remitted to the magistrate for reconsideration.