Lee Feldman & Anor v Gambling Commission

A restricting reporting order under section 4(2) of the Contempt of Court Act 1981 is an exceptional derogation from open justice. The court must ask whether reporting creates a substantial risk of prejudice, whether postponement would eliminate that risk, and whether the risk should nevertheless be tolerated after balancing fair trial and freedom of expression.

The application must be supported by clear, cogent and admissible evidence and made as soon as reasonably practicable. An order may be sought by a non-party where section 4(2) contains no standing restriction. The order should be no wider than necessary, but a narrow restriction may be justified where reporting details from one set of proceedings would prejudice later criminal proceedings.

The claimants brought proceedings for misuse of private information and breach of confidence concerning publications relating to the Gambling Commission's review of 888 Holdings' operating licences.

The review arose against the background of Operation Incendiary and subsequent criminal proceedings against the claimants and others. The Commission sought an order under section 4(2) of the Contempt of Court Act 1981 postponing reporting of specified material disclosed or referred to at the civil trial until the criminal proceedings concluded.

The claimants opposed the application, relying principally on delay, open justice, the time before the criminal trial and the alleged weakness of the connection between the civil and criminal proceedings. The central issue was whether the statutory requirements for a restricting reporting order were satisfied.

1. Application granted. The court approved the draft restricting reporting order, with a modification requiring service directly on The Financial Times as well as notification through the press alert service.
2. The application was procedurally valid. Although a signed witness statement would have been preferable, section 4(2) contains no rigid evidential formality. The application was supported by the application notice, correspondence and documentary material. It was made more than three clear days before the trial and was made as soon as reasonably practicable in the circumstances. Press-notification, territorial-effect and liberty-to-apply requirements were also satisfied.
3. The approach in In re British Broadcasting Corporation [2018] EWCA Crim 1341 was applied. First, reporting of the specified material would create a substantial, meaning not insubstantial or minimal, risk of prejudice to the later criminal proceedings. The views of HMRC, the CPS and prosecuting counsel were materially probative because they had considered the underlying material and were best placed to assess the risk. The proposed reporting also had a connection with the earlier Entain order.
4. Secondly, postponement under section 4(2) would eliminate the risk, and the evidence indicated that no lesser restriction would do so. Thirdly, the risk was not the lesser of the competing evils. Open justice remained substantially protected because the civil trial would remain public and reporting of many matters, including the fact of the investigation and charges, would remain possible.
5. The court rejected the argument that the Commission lacked standing merely because it was not a party to the criminal proceedings. Section 4(2) is silent on standing, and a non-party application was not objectionable in principle. The order was limited to the detail of information concerning the criminal investigation and prosecution.