Law Reports: Balancing open justice with fair trial: Regina v Central Criminal Court, ex parte The Telegraph plc and others - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Auld and Mr Justice Curtis), 12 March 1993.

A court would inevitably have regard to the competing public interests of ensuring a fair trial and of maintaining open justice, when deciding whether it was necessary, to avoid a substantial risk of prejudice to the administration of justice, to postpone publication of reports of criminal proceedings, pursuant to section 4(2) of the Contempt of Court Act 1981.

The Court of Appeal gave reasons for varying, on 26 January 1993, an order made by Judge Mitchell QC in the Central Criminal Court on 15 January, postponing publication of parts of the trial of 11 defendants for various offences concerning the importation, manufacture and supply of pounds 7m worth of the Class A drug known as Ecstasy.

The order was varied on an application under section 159(1) of the Criminal Justice Act 1988. Five of the applicants, including The Telegraph plc, Newspaper Publishing plc, British Broadcasting Corporation, and two defendants, Thomas Slater and one simply identified as 'H', complained that the judge's order was too wide and should be narrowed. The other three applicants, defendants 'C', 'M' and 'P', sought to further widen the judge's order.

Under section 4(2) of the 1981 Act, 'the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in . . . proceedings pending or imminent, order that the publication of any report of . . . any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.'

The judge considered a single trial of all 11 defendants would be too onerous for a jury. He split the trial into three, and made an order postponing, until after the last trial, any report of: (1) legal submissions, rulings and evidence given in the jury's absence; (2) the names of the four defendants (C, H, M and P) to be tried later, and any material calculated to identify them; (3) the name of the principal Crown witness, and any material calculated to identify him; (4) counsel's closing speeches, the summing-up and any questions by the jury thereafter.

The Court of Appeal deleted restrictions (1), (3) and (4), but indicated as to (1) that the judge should consider any such question as it arose.

Charles Gray QC and Richard Parkes (Simon Olswang & Co) for the Telegraph, Newspaper Publishing and the BBC; Ronald Thwaites QC and Ian Bourne (Goldkorns) for Slater; David Bate (Booth Bennett, Uxbridge) for C; Rudi Fortson (McGrath & Co) for H; Wendy Joseph and Peter Grieves-Smith (Russell Jones & Walker) for M; M G A Massih and Brian O'Neill (Christian Fisher & Co) for P; Andrew Mitchell (CPS) for the Crown.

LORD TAYLOR LCJ, giving the court's reserved reasons, said section 4(2) contained two requirements for the making of a postponement order: first, that publication would create 'a substantial risk of prejudice to the administration of justice'; and second, that postponement of publication 'appears to be necessary for avoiding' that risk.

It was said there was a third requirement, imported from the word 'may' at the beginning of the subsection, namely that the court, in the exercise of its discretion, having regard to the competing interests of ensuring a fair trial and of open justice, considered it appropriate to make an order.

But this discretion was already catered for by the second requirement. In deciding if it was necessary to make the order to avoid a risk of prejudice, the court would inevitably have regard to the competing public considerations of ensuring a fair trial and of open justice.

As to the first requirement, it should be noted that the risk of prejudice must be 'substantial'. The second requirement, the necessity for an order, was a statutory recognition of the principle of open justice.

The judge failed to keep distinct the two main requirements of section 4(2). Having found there would be substantial risk of prejudice, he should have gone on to consider if it was 'necessary' to make an order. Instead, he considered how, but not whether, the risk should be dealt with by an order.

News
Jeremy Paxman has admitted he is a 'one-nation Tory' and complained that Newsnight is made by idealistic '13-year-olds' who foolishly think they can 'change the world'.
peopleThe idea has been greeted enthusiastically by the party's MPs
News
Michael Buerk in the I'm A Celebrity jungle 2014
people
Voices
File: David Cameron offers a toast during a State Dinner in his honour March 14, 2012
voicesAnd nobody from Ukip said babies born to migrants should be classed as migrants, says Nigel Farage
Arts and Entertainment
Avatar grossed $2.8bn at the box office after its release in 2009
filmJames Cameron is excited
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksNow available in paperback
Arts and Entertainment
Stik on the crane as he completed the mural
art
News
Happy in his hat: Pharrell Williams
people
Arts and Entertainment
Stella Gibson is getting closer to catching her killer
tvReview: It's gripping edge-of-the-seat drama, so a curveball can be forgiven at such a late stage
News
Brazilian football legend Pele pictured in 2011
peopleFans had feared the worst when it was announced the Brazil legand was in a 'special care' unit
News
i100(More than you think)
Sport
Brendan Rodgers seems more stressed than ever before as Liverpool manager
FOOTBALLI like Rodgers as a manager but Liverpool seem to be going backwards not forwards this season
News
The Magna Carta
archaeologyContemporary account of historic signing discovered
News
Phyllis Dorothy James on stage during a reading of her book 'Death Comes to Pemberley' last year
peopleJohn Walsh pays tribute to PD James, who died today
Sport
Benjamin Stambouli celebrates his goal for Tottenham last night
FOOTBALL
Life and Style
Dishing it out: the head chef in ‘Ratatouille’
food + drinkShould UK restaurants follow suit?
News
peopleExclusive: Maryum and Hana Ali share their stories of the family man behind the boxing gloves
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Ashdown Group: Senior PHP Developer - OOP, Javascript, HTML, CSS, SQL

£39000 per annum: Ashdown Group: Senior PHP Developer - OOP, Javascript, HTML,...

Austen Lloyd: Commercial / Residential Property - Surrey

Excellent Salary: Austen Lloyd: SURREY MARKET TOWN - SENIOR PROPERTY SOLICITOR...

Recruitment Genius: Graduate Programme - Online Location Services Business

Negotiable: Recruitment Genius: What do you want to do with your career? Do yo...

Recruitment Genius: Senior QC Scientist

Negotiable: Recruitment Genius: This company is a leading expert in immunoassa...

Day In a Page

Homeless Veterans Christmas Appeal: ‘We give them hope. They come to us when no one else can help’

Christmas Appeal

Meet the charity giving homeless veterans hope – and who they turn to when no one else can help
Should doctors and patients learn to plan humane, happier endings rather than trying to prolong life?

Is it always right to try to prolong life?

Most of us would prefer to die in our own beds, with our families beside us. But, as a GP, Margaret McCartney sees too many end their days in a medicalised battle
Thomas Cook's outgoing boss Harriet Green got by on four hours sleep a night - is that what it takes for women to get to the top?

What does it take for women to get to the top?

Thomas Cook's outgoing boss Harriet Green got by on four hours sleep a night and told women they had to do more if they wanted to get on
Christmas jumper craze: Inside the UK factory behind this year's multicultural must-have

Knitting pretty: British Christmas Jumpers

Simmy Richman visits Jack Masters, the company behind this year's multicultural must-have
French chefs have launched a campaign to end violence in kitchens - should British restaurants follow suit?

French chefs campaign against bullying

A group of top chefs signed a manifesto against violence in kitchens following the sacking of a chef at a Paris restaurant for scalding his kitchen assistant with a white-hot spoon
Radio 4 to broadcast 10-hour War and Peace on New Year's Day as Controller warns of cuts

Just what you need on a New Year hangover...

Radio 4 to broadcast 10-hour adaptation of War and Peace on first day of 2015
Cuba set to stage its first US musical in 50 years

Cuba to stage first US musical in 50 years

Claire Allfree finds out if the new production of Rent will hit the right note in Havana
Christmas 2014: 10 best educational toys

Learn and play: 10 best educational toys

Of course you want them to have fun, but even better if they can learn at the same time
Paul Scholes column: I like Brendan Rodgers as a manager but Liverpool seem to be going backwards not forwards this season

Paul Scholes column

I like Brendan Rodgers as a manager but Liverpool seem to be going backwards not forwards this season
Lewis Moody column: Stuart Lancaster has made all the right calls – now England must deliver

Lewis Moody: Lancaster has made all the right calls – now England must deliver

So what must the red-rose do differently? They have to take the points on offer 
Cameron, Miliband and Clegg join forces for Homeless Veterans campaign

Cameron, Miliband and Clegg join forces for Homeless Veterans campaign

It's in all our interests to look after servicemen and women who fall on hard times, say party leaders
Millionaire Sol Campbell wades into wealthy backlash against Labour's mansion tax

Sol Campbell cries foul at Labour's mansion tax

The former England defender joins Myleene Klass, Griff Rhys Jones and Melvyn Bragg in criticising proposals
Nicolas Sarkozy returns: The ex-President is preparing to fight for the leadership of France's main opposition party – but will he win big enough?

Sarkozy returns

The ex-President is preparing to fight for the leadership of France's main opposition party – but will he win big enough?
Is the criticism of Ed Miliband a coded form of anti-Semitism?

Is the criticism of Miliband anti-Semitic?

Attacks on the Labour leader have coalesced around a sense that he is different, weird, a man apart. But is the criticism more sinister?
Ouija boards are the must-have gift this Christmas, fuelled by a schlock horror film

Ouija boards are the must-have festive gift

Simon Usborne explores the appeal - and mysteries - of a century-old parlour game