R v Sherwood ex parte Telegraph Group & Others
Reference:  EWCA Crim 1075;  1 WLR 1983;  EMLR 10
Court: Court of Appeal (Criminal Division)
Judge: Longmore LJ & Douglas Brown & Eady JJ
Date of judgment: 3 May 2001
Summary: Reporting Restrictions - s.4(2) Contempt of Court Act 1981 - Subsequent trials - s.159 Criminal Justice Act 1988 - European Convention on Human Rights - Article 6, Article 10.
Instructing Solicitors: Bindman & Partners for the Applicants
At the trial of a police officer over the shooting of an unarmed man, the trial judge made an extensive order restricting reporting in order to prevent prejudice to a second trial arising from the same incident. The Telegraph (and other media organisations) appealed to the Court of Appeal contending that the effect of the order was that nothing could be reported of a trial with substantial public interest until all the trials had been completed and that this was a disporportionate interference with freedom of expression.
(1) The role of the Court of Appeal under s.159 CJA 1988; (2)Whether the s.4(2) order had been properly made.
(1) The Court of Appeal was not be limited to reviewing the decision; it should independently reach its own view as to whether the order was correct. (2) The test to be applied is as follows: (a) would reporting would give rise to a “not insubstantial” risk of prejudice to the administration of justice in the relevant proceedings. If not, no order should be made; (b) If such a risk was found, then would the terms of the s.4(2) order eliminate that risk. If not, there was no “necessity” for such an order. Even so, the Judge should still consider whether the objective could be met with some less restrictive order; (c) the judge should consider whether the risk of prejudice identified should nevertheless be tolerated because of some countervailing consideration (such as the public interest in the particular trial and the need for open justice). This was a balancing exercise between ‘competing public interests’. Appeal dismissed.
There could be few cases that attracted such public interest than a criminal trial of a police officer charged with unlawfully killing an innocent man after a bungled police raid. Nevertheless, the Court of Appeal sanctioned reporting restrictions which meant that the media could not report contemporaneously any of the allegations. The Court’s approach can be criticised as giving insufficient recognition to the fact that news is a perishable commodity. To expect media organisations to store up reporting of an unfolding criminal trial over many weeks, and then publish all the details once the reporting restriction has come to an end arguably shows a lack of understanding of prevailing conditions. The reality of the order was that the public’s receipt of information about this important trial was substantially impaired.