Palmeira Square Nos 2-6 Ltd v Hoogstraten

On an application under section 4(2) of the Contempt of Court Act 1981, the court should ask:

1. whether reporting would create a not insubstantial risk of prejudice to pending or imminent proceedings;
2. whether postponement would remove that risk and whether a less restrictive measure could do so; and
3. whether postponement is necessary, having regard to the competing interests and whether the risk is tolerable as the lesser of two evils.

Where a serious risk to a defendant’s fair trial is established, a temporary postponement may outweigh the interests of parties, the media and the public in immediate reporting.

The application was made by Nicholas van Hoogstraten during an appeal concerning adverse judicial comments made in litigation involving Palmeira Square Nos 2-6 Ltd. The applicant was due to stand trial for murder and conspiracy to murder. He sought an order under section 4(2) of the Contempt of Court Act 1981 postponing publication of reports of the Court of Appeal proceedings until the criminal trial ended.

The respondent did not oppose postponement in principle but sought a narrower order limited to reports concerning character or alleged unlawful conduct. The central issue was whether the statutory test for postponement was satisfied and how the applicant’s fair-trial rights should be balanced against freedom of expression and the public interest in reporting court proceedings.

1. Application granted. The court made an order under section 4(2) of the Contempt of Court Act 1981 postponing publication of reports of the proceedings until the conclusion of the criminal trial.
2. The court followed the three questions suggested in R v Sherwood, ex p The Telegraph Group [2001] EWCA Crim 1075: whether reporting would create a not insubstantial risk of prejudice; whether a postponement order would eliminate that risk and whether a less restrictive means could do so; and whether the order was necessary, with the risk assessed as the lesser of two evils.
3. On the evidence, reporting material critical of the applicant could affect a juror in the criminal trial. The risk was therefore established. A section 4(2) order would remove it, whereas the respondent’s proposed limited restriction would create uncertainty about the order’s scope and its enforcement as a contempt order.
4. The applicant’s right to a fair trial under Article 6 of the European Convention on Human Rights outweighed the respondent’s and tenants’ interests, the media’s Article 10 rights, and the public interest in immediate reporting. The order was temporary and would postpone publication only until the criminal trial concluded.

Lord Justice Aldous and Lord Justice Tuckey agreed with Lord Justice Peter Gibson.

• Court of Appeal (Civil Division): Lord Justice Peter Gibson, with Lord Justices Aldous and Tuckey agreeing, granted the application and postponed reporting until the conclusion of the criminal trial.
• High Court, Queen’s Bench Division: McCombe J had allowed an appeal from the Brighton County Court and repeated or added criticisms of the applicant.
• Brighton County Court: Her Honour Judge Coates had refused the respondent’s application for costs against a person who was not a party to the proceedings and had decided a related conspiracy claim in the applicant’s favour.