Law Report: Ban on 'Cook Report' is lifted: Coe v Central Television and another - Court of Appeal (Lord Justice Glidewell, Lord Justice Butler- Sloss and Lord Justice Kennedy), 30 July 1993

To restrain the publication of material, on the ground of contempt of court at common law, where criminal proceedings had not been begun, it was necessary for the court to be sure, beyond reasonable doubt, that: (a) such publication would create a risk of real prejudice to the administration of justice, if and when the prosecution went ahead; and (b) the material would be published with the specific intention to causing that risk.

The Court of Appeal gave its reasons for allowing, on 27 July 1993, an appeal by the defendants, Central Television, Roger Cook and Frank Thorne, and discharging an injunction, granted earlier that day by Mr Justice Sachs, restraining them from broadcasting material featuring the plaintiff, Alexander Coe, in an edition of The Cook Report on the subject of computer pornography. The programme was later shown uncut.

Patrick Moloney (Mishcon de Reya) for Central; Geoffrey Shaw QC (Fisher Meredith) for Mr Coe.

LORD JUSTICE GLIDEWELL, giving the court's reasons, said a pornographic picture or film could now be incorporated into a computer disk and transmitted electronically to other computers.

The defendants were investigating allegations of a growing trade in the distribution of pornography by this means and concerns that the criminal law was inadequate to combat it.

In response to a 'trap order' the plaintiff transmitted material to the defendants' computer which it then reproduced in permanent form. The defendants supplied it to the police.

At 6.50am on 20 July 1993, police officers equipped with search warrants broke open the door to the plaintiff's flat and entered.

The warrants authorised them to search for obscene articles and indecent photographs of children. They seized material in the plaintiff's possession.

The police were accompanied by Mr Thorne and a TV camera crew. They filmed the police entry into the flat, the plaintiff in bed, and parts of the flat's interior. They stopped filming when the plaintiff asked them. He declined their offer to interview him.

The judge granted the plaintiff an injunction to stop the defendants using this film on the basis of restraint of an anticipated contempt of court.

At the date of the hearing, no active steps had been taken in any prosecution against the plaintiff, so the strict liability rule under sections 1 and 2 of the Contempt of Court Act 1981, and Schedule 1, paragraphs 3 and 4, did not apply.

However, by virtue of section 6(c) of the Act, a publication, though not within the strict liability rule, might still constitute a contempt of court at common law.

To uphold an injunction on this basis, their Lordships would need to be satisfied, applying the criminal standard of proof: (1) that publication of the film and other material obtained by the defendants at the plaintiff's flat on 20 July 1993 would create a real risk of prejudice to the administration of justice; and (2) that the defendants were going to publish that material with the specific intention of causing that risk.

Their Lordships were not so satisfied, for the following reasons: (a) the plaintiff had not, at the time of the hearing, been charged; (b) the Crown Prosecution Service might decide that the chances of a prosecution succeeding were such that the plaintiff should not be charged; (c) if there was a prosecution, it was uncertain what matters would be in issue and require to be proved by the prosecution. There might be no issue over the facts emerging from the material in the defendants' possession; (d) a trial, particularly in the Crown Court, would not take place for some months. By that time the memory of the programme's contents of any potential magistrate or juror who watched it would be likely to have dimmed; (e) the defendants said they were publishing the material to show how the activity was carried on and to argue that, if it was not an offence, the law should be changed, and they did not intend to prejudice the result of any future trial. It was not obvious that their Lordships should draw the opposite inference.