Page 176 - Law and the Media

Reporting Restrictions
local newspapers would wish to publish but is not of such great public interest that the
newspaper restrained by the order would incur the expense of applying to have the order
revoked. The Court of Appeal has, therefore, emphasized the need for the court to give ‘very
serious consideration’ to the issues before making an order under Section 4(2) (Ex parte
News Group Newspapers Ltd (1999)).

Once an order is made under Section 4(2), the media are usually subject to major inhibition.
The following key ingredients of Section 4(2) are, therefore, of considerable importance.

The court
In this, as in every other provision of the Contempt of Court Act 1981, the reference to court
‘includes any tribunal or body exercising the judicial power of the State’ (Section 19). Thus,
all the regular courts from the magistrates’ court upwards may make orders under Section
4(2), as may the coroners’ court, employment tribunals, mental health tribunals and any other
tribunal established by statute to perform a judicial function.

Necessary
The court must consider that the order is ‘really needed’ rather than just expedient or useful
because any other order would undermine Article 10 of the European Convention on Human
Rights (the right to freedom of expression). ‘Necessary’ in the context of Section 4(2)
implies more than ‘merely convenient’, and must be ‘specifically related to the avoidance of
the described risk’. In Ex parte Central Independent Television Plc (1991), the banning of
reports on a trial when the jury retired overnight to consider its decision was held to be
unnecessary because the jurors could have been instructed not to switch on their televisions
or radios.

Substantial risk
The risk must be substantial. Unlike the strict liability rule in Section 2 of the Contempt of
Court Act 1981 (see Chapter 10), the prejudice does not have to be ‘serious’ but it must be
more than minimal. In considering whether the risk of prejudice is ‘substantial’, the court
will consider the length of time between the publication and the proceedings (A-G v News
Group Newspapers Limited (1987)) and give credit to jurors’ ability to consider only the
evidence before them (MGN v Bank of America (1995)).

Proceedings
The proceedings may be those actually before the court, or any other case that is ‘pending
or imminent’. The power to postpone is limited to reports of legal proceedings held in public
(R v Rhuddlan Justice ex parte HTV Limited (1985)).

For any period of time
Any postponement order should be for a specific period of time that should be defined by
reference to the test of necessity. The media should be in no doubt that the Section 4(2) order
is a powerful gagging weapon. The postponement may run for a considerable time, although
it is often until the conclusion of the trial or a series of trials. However, the court may not
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