Times Newspapers Ltd. & Ors v R.

Section 4(2) of the Contempt of Court Act 1981 permits a temporary postponement needed to avoid substantial prejudice to the administration of justice in the proceedings concerned, or in specific pending proceedings. It cannot support an indefinite restriction imposed after a trial merely to protect the wider purpose of official-secrets prosecutions.

Where evidence properly subject to an in camera direction is accidentally heard in public, section 11 may protect the actual matter withheld. It does not authorise a prohibition on material which merely might reveal that matter. Publication designed to flout an in camera order may nevertheless amount to contempt at common law.

The media appealed two reporting-restriction orders made by Aikens J at the conclusion of a prosecution under the Official Secrets Act 1989. One order, made under section 4(2) of the Contempt of Court Act 1981, indefinitely postponed reporting of a question and answer inadvertently given in open court although it should have been heard in camera.

The second order, made under section 11 of that Act, prohibited publication connected with the proceedings of the contents of a confidential letter, alleged damage from its disclosure, and material which might reveal in camera evidence. The central issues were whether section 4(2) could sustain the indefinite order, and whether the section 11 order was wider than the statutory power.

Disposition

1. The appeal was allowed in part. The section 4(2) order was quashed. The section 11 order was amended by deleting the words “or might”.

2. Section 4(2) of the Contempt of Court Act 1981 is directed to preventing publication which would prejudice the conduct of the proceedings in question, or identified pending proceedings. It permits postponement, not an enduring prohibition. The trial had ended and publication of the mistakenly public question and answer would not have affected its conduct. The order therefore fell outside section 4(2).

3. The mistaken public disclosure did not place the evidence beyond protection. It fell within the category of material which the judge had validly directed to be heard in camera under section 8(4) of the Official Secrets Act 1920, as applied by the Official Secrets Act 1989. Section 11 of the Contempt of Court Act 1981 was the proper statutory means of preventing publication of that matter, and the existing order in fact covered it.

4. Section 11 permits prohibition only of the name or matter actually withheld from the public, where necessary for the purpose of withholding it. It did not authorise a prohibition of material that might reveal the in camera evidence, including inaccurate speculation. Such a prohibition went beyond the statutory language, although an attempt to flout the court’s order could itself amount to contempt at common law.

5. The restrictions concerned reports of, or connected with, the proceedings. They did not create a general restraint on publication unrelated to those proceedings. Other legal restrictions on publication in the interests of national security were outside the appeal.

• Court of Appeal (Criminal Division): Allowed the media’s appeal in part in [2007] EWCA Crim 1925. It quashed the section 4(2) order and amended the section 11 order.
• Central Criminal Court: Aikens J made the challenged reporting-restriction orders following the official-secrets trial.