Re Times Newspapers Ltd  EWCA Crim 887
Case date: 08/07/2016
Court: Court of Appeal
Area/s of law: Contempt, Reporting restrictions
In early December 2015, Ehsan Abdulaziz was tried at Southwark Crown Court on a charge of rape (he was eventually acquitted). On 8 December 2015, the trial judge, HHJ Griffith made an order that parts of the trial should take place in private (‘the 8 December Order’). The application had been made by the Crown and was itself heard in private. A Times reporter asked the Judge to explain why the order had been made and the Judge gave an explanation in open court (‘the Wording’). At the time, no restriction was placed upon the reporting of the Wording, and the Wording was repeated in an email to Times Newspapers Ltd (‘TNL’) the next day, again without any express restriction.
On 15 December 2015 the Crown applied for an order under s11 of the Contempt of Court Act 1981 prohibiting reporting of the Wording. Part of the application, which TNL opposed, was heard in private with TNL excluded. The Judge refused a request that TNL or its legal representatives be informed of the gist of the material relied on by the Crown. The Judge made the order sought (‘the 15 December Order’).
There was no appeal against the 8 December Order but, pursuant to s159 of the Criminal Justice Act 1988, TNL appealed against the 15 December Order.
The Court of Appeal identified three issues:
- was it necessary to depart from the open justice principle in respect of the wording?
- If yes, does the court have jurisdiction to restrain publication of the Wording under CCA s11?
- What procedure should have been adopted? Specifically, should the Crown have been permitted to rely on information/evidence which was not provided, even in summary form, to TNL or its legal representatives?
The CA dismissed the appeal and made an order under CCA s11 in agreed terms.
The strict test of necessity (see In re Guardian News and Media Ltd  EWCA Crim 1861 “Incedal I”; and In re Guardian News and Media Ltd  1 WLR 1767, “Incedal II”) was satisfied. There had been compelling reasons for the 8 December Order and for the same reasons (which the CA was unable to state in its open judgment) it was necessary to prohibit publication of the Wording, in order to avoid frustrating or rendering impracticable the administration of justice. Publication of the Wording would have frustrated or undermined the purpose of the 8 December Order: -;
The condition precedent for grant of a s11 order is that the court (having power to do so) has allowed “a name or other matter to be withheld from the public in proceedings before the court”. TNL submitted that the only “matter” that the Judge had permitted to be withheld from the public was the evidence identified in the 8 December Order, not the Wording used in his explanation to the press. The CA held however that, by necessary implication, the “matter” allowed to be withheld from the public must cover not only the evidence identified in the 8 December Order but also the reasons for that order, insofar as the publication of those reasons would otherwise have the effect of revealing the nature of the evidence to be withheld from the public.
Although the Judge had used the Wording in open court, that was to be characterised as a mistake (as was subsequent use of the Wording in the Judge’s ruling in open court on 15 December and in the 15 December Order). However, the mere fact that something has been said in open court is not conclusive and fatal to any restraint. There is jurisdiction to correct mishaps: In re Times Newspapers Ltd  1 WLR 234. The court therefore had jurisdiction to make the 15 December Order notwithstanding what had occurred in open court.
For reasons that the CA could not give in its open judgment, TNL’s complaint about the procedure adopted on 15 December 2015 was rejected: the Crown could neither accept undertakings nor supply TNL with the gist of the information and evidence in question: Incedal I at - and Incedal II at - applied.
The issue of whether parts of the trial should be heard in private had arisen unexpectedly at short notice: see . This case demonstrates the difficulties with dealing with such applications on the hoof, and in particular the need for attention to be paid to ancillary matters, such as reporting of the terms of, or reasons for, a privacy order. The Court commented on the complexities that can arise and recommended that the Senior Presiding Judge should consider whether arrangements could or should be made for such applications to be dealt with by senior, or specially designated, judges: .
The case also demonstrates however that, where a court is convinced there is a genuine need to withhold material from the public, it will usually find a way to ensure that privacy is ensured and is not undermined, even where there has been a “mishap of a serious nature” (as the CA described the Judge’s handling of the matter here: ) and despite the presence of formidable jurisdictional hurdles.
The fact that, so soon after the Incedal case, a closed procedure, limiting the informed involvement of the media, was used to determine an application for a derogation from the open justice principle is striking, although the CA (for reasons that may never be known) was clearly persuaded that it was fully justified in this case.