Greater Manchester Police v Channel 5 Broadcast Ltd

An injunction restraining publication under section 2(2) of the Contempt of Court Act 1981 requires a high standard of persuasion that publication will create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced. The court must assess the additional effect of the proposed publication against publicity and risks already present. General notoriety, existing reports and possible witness intimidation do not suffice if the broadcast would not materially add to the risk. A concern about jurors may be insufficient where no specific jury prejudice is shown and proper directions can address known local conditions. The possible inaptitude of the criminal standard of proof in this type of application was noted, but the required threshold remained high.

Following the killing of Desmond Noonan, a man was arrested on suspicion of murder but had not been charged. Investigations remained in progress. The Chief Constable sought an order from Poole J at Preston District Registry restraining Channel 5 from broadcasting a programme entitled “Gangsters”, which portrayed Desmond Noonan and his brother as violent and indifferent to the law.

The police were concerned that the programme might deter potential witnesses from assisting the investigation or might influence them through fear of the Noonan family. Poole J concluded that there was a substantial risk that the course of justice would be prejudiced. Channel 5 obtained permission to appeal. The central issue was whether the proposed broadcast would materially reinforce existing publicity and thereby create the statutory risk.

The Court of Appeal, in a judgment delivered by Lord Justice Auld and agreed by Lord Justice Chadwick, allowed permission to appeal, allowed the appeal and quashed the injunction.

1. Section 2(2) of the Contempt of Court Act 1981 imposes a demanding threshold. The applicant must satisfy the court, to a high standard of persuasion, that publication will create a substantial risk that the course of justice in the active proceedings will be seriously impeded or prejudiced. Auld LJ doubted whether the criminal standard of proof was apt for this exercise, but left that question unresolved because the required high threshold was not met.
2. The court must consider the incremental effect of the proposed publication. Existing publicity, local notoriety and an already present risk of witness intimidation may be insufficient if the publication would not materially add to those circumstances. The proposed broadcast had to create a substantial risk where none existed before, or substantially increase an existing risk.
3. The Chief Constable did not identify a specific concern that the jury would be prejudiced. The court was entitled to expect a British jury, assisted by proper judicial directions, to cope with publicity about conditions already well known in the Manchester area.
4. Poole J had recognised the high standard and referred to the criteria identified by Schiemann LJ in Attorney-General v MGM [1997] 1 ALL ER 459 to 460, but had not explained why the broadcast would materially add to the publicity and material already circulating. The evidence did not establish the necessary substantial risk.
5. Chadwick LJ agreed that the statutory requirements were not satisfied and that no injunction restraining publication should have been granted. The respondent was ordered to pay the appellant’s costs, subject to detailed assessment.

• Court of Appeal (Civil Division): Allowed the application for permission to appeal and the appeal, and quashed the order restraining the broadcast.
• Preston District Registry (Poole J): Granted an order restraining Channel 5 from broadcasting the programme, having found a substantial risk that the course of justice would be prejudiced.