This article was first published on the specialist journalism website Hold the Front Page. 

As we all know, S.4(2) of the Contempt of Court Act 1981 allows a Judge to postpone reporting of proceedings for as long as he or she deems necessary, in order to avoid a "substantial risk of serious prejudice to the administration of justice in those proceedings, or any other proceedings, pending or imminent".

In theory, that makes perfect sense.

For example, if you have two closely linked trials, which are being heard separately, it could make sense that the first trial is not reported until the second trial has also concluded. Otherwise, you could end up with all of the evidence, which is relevant to both trials, being in the public domain prior to the second trial taking place, which could cause a substantial risk of serious prejudice. The verdict in the one trial could also influence the verdict of the second.

So, it is clear that S.4(2) orders have their place. But, what are the common pitfalls and useful points to note?

Just last week we saw an example of a wrongly imposed S.4(2) order. The case concerned two closely linked trials. The first trial had ended, and the second was about to take place, with some of the same defendants.

The trial Judge in the second trial had concerns over reports which might combine both trials, and during the second trial, imposed a S.4(2) restriction banning reporting of both trials (even though the first had concluded).

The order was lifted after a challenge, as the Judge accepted that the order could not be imposed on the first trial, and actually, it was unnecessary in respect of the second trial. This was a complex case where some concern was justified, but the imposition of a S.4(2) order was not suitable.

In general, an issue that has arisen frequently over the last few months has been where orders (of all different kinds) are imposed, and copies are duly provided to the journalist by court staff, but no reasons are given for the imposition of the order by the Judge, the CPS or Counsel.

Without knowing the reason for the imposition of an order, it is impossible to make credible submissions as to why the order is unwarranted or unnecessary.

As the 'Reporting Restrictions in the Criminal Courts' guidance states:

"…the court should not impose any reporting restrictions without first giving the media an opportunity to attend or to make representations, or, if the Court is persuaded that there is an urgent need for at least a temporary restraint, as soon as practicable after they have been made. The media bring a different perspective to that of the parties to the proceedings. They have a particular expertise in reporting restrictions and are well placed to represent the wider public interest in open justice on behalf of the general public."

And as long ago as 1981 (just after the Contempt of Court Act became law), the Lord Chief Justice stated that orders like these should not be made without reasons being given.

Therefore, it is crucial that the media and representatives of the media are in a position to understand the reasons for the imposition of the order, to be able to put the best challenge possible forward. And making challenges must be seen by Judges as the media exercising their rights in the public interest, rather than as an annoyance.

Another important point to note is that a challenge should be made at the earliest possible opportunity, and certainly before the case ends. Once a case has ended, it becomes incredibly difficult to challenge an order, and any challenge will incur far greater time and legal costs than it would have if it was made during the proceedings.

Of course, in some cases, challenges are best made once there has been a conviction (for example, when a teenager has been convicted of a serious offence, having been protected by a S.45 order), because there is a greater chance of success. But, such challenges should still be made prior to sentencing, so reporters need to be on their toes and keep track of the listings for the case.

Reporting restrictions can be a minefield, and it is often the case that a balance needs to be struck between asserting your rights, and preserving your relationship with the Judge and Court staff (which can be invaluable). But, being clued up on the rights and wrongs, and challenging at the earliest opportunity is likely to stand you in good stead. 

For more information on this matter please contact me on +44 01392 685368 or email [email protected]