Sarker, R v

A postponement order under section 4(2) of the Contempt of Court Act 1981 is exceptional and requires a structured assessment. The court must ask whether fair and accurate contemporaneous reporting creates a substantial risk of prejudice, whether an order would eliminate that risk and whether less restrictive measures suffice, and then make a proportionate balance between fair-trial interests and open justice.

Ordinarily, jurors must be trusted to obey directions not to research the case. A section 4(2) order cannot be justified by a speculative fear that lawful reports will lead jurors to prejudicial material already online. Nor can it prevent republication, links or third-party material which would independently breach the strict liability rule.

The defendant, a surgeon, was tried at Worcester Crown Court for fraud contrary to section 1 of the Fraud Act 2006. The allegation concerned representations made to obtain a consultant appointment. Earlier media reports had described later concerns about his surgical competence, patient deaths and related investigations, but those matters were not evidence at the trial.

On the first day of trial, the judge made an order under section 4(2) of the Contempt of Court Act 1981 postponing all reporting until verdict. He feared that reports, particularly online reports with photographs, might lead jurors to the earlier prejudicial material. The judge later refused the BBC's application to discharge the order.

After the jury convicted the defendant and the order was discharged, the BBC sought permission to appeal as a matter of principle under section 159 of the Criminal Justice Act 1988. The central issue was whether the postponement order was necessary to avoid a substantial risk of prejudice.

1. Appeal allowed. The court granted permission to appeal and quashed the reporting restriction order. An appeal under section 159 of the Criminal Justice Act 1988 remained available although the order had been discharged after verdict.

2. The proper approach under section 4(2) of the Contempt of Court Act 1981 has three stages. First, the court must identify whether contemporaneous reporting would create a substantial risk of prejudice. Secondly, it must decide whether postponement would remove that risk and whether a less restrictive measure would suffice. Thirdly, it must make a proportionate value judgment between the competing interests of a fair trial and open justice.

3. Open justice is the default. Reporting restrictions are exceptional measures of last resort. They require clear justification and clear and cogent evidence. Even a short postponement may in practice prevent reporting altogether, because news loses value when it is no longer contemporaneous.

4. Fair and accurate reporting of the trial would not itself prejudice this jury. Jurors had seen the material reported and had been expressly directed not to conduct research or act on media coverage. The court had to proceed on the basis that they would obey those directions.

5. The perceived danger instead depended on an unsupported assumption that a lawful report would link to earlier prejudicial material or prompt a juror to search for it. A section 4(2) order could not prevent either republication or signposting of material whose publication would already risk contempt under the strict liability rule. It was also an impermissible means of guarding against speculative juror misconduct or third-party commentary.

The order was therefore neither justified by a substantial risk arising from fair reporting nor necessary to avert the supposed risk.

• Court of Appeal (Criminal Division). Granted the BBC permission to appeal, allowed its appeal under section 159 of the Criminal Justice Act 1988, and quashed the reporting restriction order.
• Worcester Crown Court. HHJ Juckes QC made an order under section 4(2) of the Contempt of Court Act 1981 postponing all reporting of the trial until verdict, and later refused to discharge it. The order was discharged after the jury returned its verdict.