B, Re

A court may postpone a fair and accurate contemporaneous report under section 4(2) of the Contempt of Court Act 1981 only where this is necessary to avoid a substantial risk of prejudice to pending or imminent proceedings. The power addresses prejudice caused by the report itself. It does not extend to anticipated prejudicial comment which a report may prompt, since that comment is controlled by the strict liability rule.

High public interest in sentencing and the prospect of public debate do not alone establish the required risk. The assessment must recognise responsible media restraint, the discipline of the trial process, and the capacity of juries to follow directions to decide the case solely on admissible evidence.

The BBC, The Times and Associated Press appealed under section 159 of the Criminal Justice Act 1988 against Butterfield J’s reporting-postponement order. B had pleaded guilty to conspiracy to murder after the indictment had been severed. His co-defendants were to stand trial later.

The judge permitted reporting of B’s plea and its basis, but postponed reporting of the forthcoming sentencing hearing. He was concerned that his sentencing remarks would prompt sustained public debate and could prejudice the later trial. The media appellants, supported by the Crown, contended that fair and accurate reporting created no substantial risk of prejudice. The issue was whether postponement was necessary under section 4(2) of the Contempt of Court Act 1981.

1. Appeal allowed. The court set aside Butterfield J’s order postponing reports of B’s sentencing hearing.

2. On an appeal under section 159 of the Criminal Justice Act 1988, the Court of Appeal must reach its own independent conclusion on the material, as stated in Ex parte The Telegraph Group plc and others [2001] 1 WLR 1983. The trial judge’s familiarity with the case remained an important consideration, but the appellate court was deciding whether his conclusion was wrong, not merely reviewing his discretion.

3. Section 4(2) of the Contempt of Court Act 1981 concerns the risk created by fair and accurate reporting of public proceedings. Adopting Scarsbrook or Galbraith v Her Majesty’s Advocate, the court held that the provision could not be used to prevent separate prejudicial comment which reporting might provoke. Such comment falls outside the section 4(1) protection and is addressed by the strict liability rule.

4. The fairness of the co-defendants’ trial had primacy. However, the court rejected the premise that legitimate reporting of the sentence and sentencing reasons would create the necessary substantial risk. The prosecution case and evidence against B were admissible at the co-defendants’ trial. Although the sentencing judge’s observations were inadmissible, public interest and possible debate about them did not demonstrate that a jury would be unable to decide the case on the evidence.

5. The court applied the safeguards identified in Montgomery v Her Majesty’s Advocate [2003] 1 AC 641: responsible editors should avoid prejudicial comment, and juries can be trusted to follow tailored directions and concentrate on the evidence heard at trial. Those safeguards meant that postponement was not necessary.

• Court of Appeal (Criminal Division): Allowed the media organisations’ appeal under section 159 of the Criminal Justice Act 1988 and set aside the reporting-postponement order: [2006] EWCA Crim 2692.
• Crown Court: Butterfield J, sitting at Woolwich Crown Court, ordered on 12 October 2006, and maintained on 17 and 18 October, that reporting of B’s sentencing hearing be postponed until the co-defendants’ trial had concluded.