Times Newspapers Ltd v Abdulaziz

Open justice is a fundamental common-law principle. A departure requires necessity, which may arise where publication would frustrate or render impracticable the administration of justice.

Under section 11, a matter permitted to be withheld may, in an exceptional case, include by necessary implication reasons for an in-camera order where publishing those reasons would reveal the protected evidence. The court may correct an accidental disclosure in open court. Orders derogating from open justice must nevertheless be precise, including about whether their making or terms may be reported.

During the defendant’s rape trial, the Crown obtained an unchallenged order that evidence concerning the defendant’s character be heard in private. When the judge explained that decision in open court, he used wording which risked revealing the nature of the protected evidence.

The Crown subsequently obtained an order under Contempt of Court Act 1981 section 11 preventing publication of that wording. Times Newspapers Ltd appealed, contending that the restriction was unnecessary, outside section 11, and made through an unfair closed procedure.

The central issues were necessity, the scope of the section 11 jurisdiction after an accidental open-court disclosure, and whether the Crown could rely on material not disclosed, even in gist, to the publisher.

1. Appeal dismissed. The court granted leave under Criminal Justice Act 1988 section 159(1)(c), and reached its own conclusion rather than reviewing the Crown Court’s decision.

2. The unchallenged order for a limited in-camera hearing was justified by compelling reasons. Publication of the judge’s explanatory wording would frustrate or undermine that order’s purpose. It was therefore necessary to restrict publication, notwithstanding the fundamental principle of open justice.

3. Section 11 of the Contempt of Court Act 1981 was engaged. Although the express terms of the earlier order referred only to evidence, the protected “matter” necessarily included reasons whose publication would reveal the nature of that evidence. That implication was exceptional and arose only because strict necessity required it.

4. An accidental statement in open court did not deprive the court of jurisdiction to prevent its publication. Following In re Times Newspapers Ltd [2007] ECWA Crim 1925, there is a material distinction between what is heard in open court and what is published. The court could therefore correct the serious mishap, provided that the underlying matter had lawfully been withheld.

5. The Crown Court procedure did not render the order invalid. On the material considered, the Crown could neither provide a gist of the closed information nor accept proposed undertakings. The complaint concerning exclusion and non-disclosure was rejected.

6. The court discharged its temporary section 4(2) order for the appeal hearing and made a section 11 order prohibiting publication of matter tending to identify the terms or nature of the protected wording, pending further order.

• Court of Appeal (Criminal Division): Granted Times Newspapers Ltd leave to appeal under the Criminal Justice Act 1988 and dismissed the appeal against the reporting restriction.
• Southwark Crown Court: HHJ Griffith made an order under section 11 of the Contempt of Court Act 1981 on 15 December 2015 restricting publication of the judge’s wording explaining the earlier private-hearing order.