Full case report
Independent Publishing Co Ltd v AG of Trinidad & Tobago & Others
Reference  UKPC 26;  1 AC 190;  3 WLR 611;  EMLR 575
Court Privy Council
Judge Lords Bingham, Hoffmann, Walker, Carswell and Brown
Date of Judgment 8 Jun 2004
Contempt – Reporting Restrictions – Open Court – Open Justice – Fair Trial – Prejudice
The Appellants (publishers and journalists) appealed against a decision of the Court of Appeal of Trinidad and Tobago upholding two orders restricting reporting made in a murder trial taking place in open court. A deal was struck between prosecution and one defendant whereby he agreed to give evidence against his co-defendants in return for an assurance that he would receive life imprisonment rather than the death sentence. The trial judge made an order restraining the media from reporting information relating to this defendant. Despite this, an article appeared suggesting that one of the co-defendants was going to turn Crown’s evidence at the trial. The editor and journalist were found guilty of contempt. The editor was jailed and the journalist was fined. The judge then imposed an order prohibiting publication of details of the contempt proceedings. The Appellants challenged the decision contending that it violated their rights to freedom of expression under the constitution.
(1) Does the court have a common law power to order that the publication of a report of proceedings conducted in open court be postponed? (2) Were the editor and journalist guilty of contempt? (3) Were the publishers entitled to redress by constitutional motion for interference with their right to free expression? (4) Were the editor and the journalist entitled to redress by constitutional motion for interference with their right to free expression? (5) Was the editor entitled to constitutional relief for a violation of his right to due process?
(1) There was no power under the common law to order postponement of press reporting of proceedings in open Court; any such power has to be provided by legislation. (2) Notwithstanding that there was no basis for the original order, the publication of the article was a contempt of court as it revealed material about the trial that gave rise to a substantial risk of prejudice. (3) Yes; (4) Yes, Chokolingo v The Attorney General of Trinidad & Tobago  1 WLR 106 distinguished. (5) Objectively judged, the procedure was fair. The judge had erred, but the editor had a right of appeal. As such he had received due process and the order for assessment of damages for breach of due process would be set aside.
The interesting part of this judgment is the careful analysis of the powers available to a court to make orders restricting the media and the conclusion that there is no inherent power under the common law. Lord Brown held (at para 67): “Their Lordships likewise conclude that if the court is to have the power to make orders against the public at large it must be conferred by legislation; it cannot be found in the common law.” Journalists involved in reporting the courts should have this judgment tucked in their notebook to cater for the occasions when a court appears to think that its powers to restrict reporting are unlimited.
Herbert Smith, Simons Muirhead & Burton for the Appellants; Charles Russell for the Respondents
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