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.

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