In re Times Newspapers Ltd and Others
Reference:  EWCA Crim 1925;  1 WLR 234;  1 AllER 343; (2008) 1 CrAppR 16; The Times, 31 July 2007
Court: Court of Appeal, Criminal Division
Judge: Lord Phillips LCJ, Elias and Griffith Williams JJ
Date of judgment: 30 Jul 2007
Reporting restrictions - Contempt of Court Act 1981, ss.4(2), 11 - Scope of orders - Whether s.4(2) order could be used to postpone publication indefinitely - Whether s.11 order could prohibit publication of speculation
Instructing Solicitors: Times Newspapers Legal Department for the Appellant; CPS for the Respondent
The media appealed against a s.4(2) and s.11 order made at the end of a trial under the Official Secrets Act at the Central Criminal Court. The s.4(2) order postponed indefinitely the reporting of a question and answer mistakenly given in open court. The s.11 order related to evidence that had been given in camera.
The media objection to the first order was twofold: indefinite postponement was not permitted and disclosure did not give rise to a serious risk of prejudicing any pending proceedings. The media argued that the second order was too widely drafted.
Should the reporting restriction orders be varied and if so, to what extent?
Allowing the appeal in part,
(1) The purpose of a s.4(2) order was to protect proceedings yet to take place and to postpone not prohibit publication. The making of the order at the close of proceedings did not fall within the jurisdiction conferred by the Contempt of Court Act.
(2) The s.11 order went further than the scope of the legislative power insofar as the order forbade publication of any matter which might reveal the subject of the in camera order; ie the publication of inaccurate speculation (which remained attempted contempts in themselves).
A judge could restrain publication of a question and answer which should have been given in camera. However the Court of Appeal took the view that the s.4(2) order was not made within the spirit that the legislation intended, and as the errancy was covered by the separate s.11 order, surplus to requirements. The s.11 order was revised on the basis that the jurisdiction was to prohibit disclosure of withheld matters not speculation as to their contents, however the Court warned that reports that did not overtly declare themselves to be speculation would appear to the public to flout the Court’s order and be punishable contempts.