MGN Ltd & Ors, RE Application for Leave To Appeal

An order postponing fair and accurate reporting under section 4(2) of the Contempt of Court Act 1981 is a last resort. The court must identify a real, not insubstantial risk of prejudice, determine whether postponement will remove it, and consider less restrictive measures. Any order must go no further than necessary.

A blanket reporting prohibition was unjustified where juries could be trusted to follow directions and where publication would not materially protect witnesses from risks already arising from known identities and served evidence. Witness protection should ordinarily be addressed through statutory protective measures or tailored applications. Open justice permits fair, accurate and contemporaneous reporting unless a properly justified restriction is necessary.

Representatives of the media applied under section 159 of the Criminal Justice Act 1988 for leave to appeal against a Central Criminal Court order made on 20 December 2010 and confirmed on 6 January 2011.

The order, made under section 4(2) of the Contempt of Court Act 1981, prohibited reporting of all proceedings in three successive trials arising from the same fatal attack until the conclusion of the third trial. Twenty young defendants faced charges including murder, conspiracy to cause grievous bodily harm and violent disorder. Witnesses were expected to give evidence in more than one trial.

The central issue was whether a blanket postponement of fair and accurate reporting was necessary to avoid a substantial risk of prejudice to the administration of justice.

1. Leave was granted and the appeal allowed. The blanket order postponing publication of fair and accurate reports of all three trials was quashed.

2. Section 4(2) of the Contempt of Court Act 1981 requires a structured assessment. The court must first identify a not insubstantial risk of prejudice. It must then decide whether a reporting restriction would eliminate that risk. If it would, the court must consider whether less restrictive measures would adequately address it. Even where no alternative eliminates the risk, the court must make a value judgment. A restriction is a last resort and must extend no further than necessary.

3. The possibility that jurors in the later trials might encounter reporting of the first did not justify the order. The juries could be trusted, with clear directions, to decide each defendant's case solely on the evidence. The integrity of the jury was not a basis for a blanket restriction.

4. The concerns about young and repeat witnesses also did not establish that a comprehensive reporting ban was necessary or effective. The defendants already knew the witnesses' identities from the served papers and could identify those giving evidence irrespective of publication. Any risk of altered recollection or changed evidence was not shown to be materially reduced by preventing fair contemporaneous reporting. Such difficulties commonly arise in high-profile criminal cases and are addressed through the trial process, including cross-examination.

5. Section 4(2) does not regulate unfair or inaccurate reporting, or contemptuous comment. It restricts otherwise fair, accurate and contemporaneous reporting, so open justice requires particular restraint. Protection for individual witnesses should ordinarily be sought under targeted statutory measures, including section 39 of the Children and Young Persons Act 1933, where justified. Further tailored applications were left to the trial judge.

• Court of Appeal (Criminal Division). Leave was granted and the media appeal was allowed: [2011] EWCA Crim 100.
• Central Criminal Court. His Honour Judge Moss QC made a section 4(2) reporting restriction on 20 December 2010 and confirmed it on 6 January 2011. The restriction was quashed by this court.