Page 177 - Law and the Media

Law and the Media
prohibit reporting for all time under the guise of postponement, nor may it make an order for
any reason other than to avoid prejudice in the proceedings or pending proceedings. In
addition, ‘blanket bans’ on reporting are likely to be inappropriate (R v Horsham Justices ex
parte Farquarson (1982)).

9.3.2 Discretion

The court has an overriding discretion whether to make a postponement order. The exercise
of the court’s discretion will be in response to the particular facts and circumstances of each
case. However, there are three situations in which a postponement order is regarded as
normal practice, often because the strict liability contempt rule in Section 2 of the Contempt
of Court Act 1981 might not apply unless there is an order for postponement. The three
situations are as follows:

1. Where a prejudicial matter is heard by the court while the jury is absent, known as a ‘trial
within a trial’. The admissibility of particular pieces of evidence, such as confessions and
submissions on points of law, are usually made during a trial within a trial.
2. Where the accused is awaiting a further trial or trials for other matters. Here, there is a risk
of prejudice to ‘other proceedings’ rather than those in which the order is made.
Obviously, the publication of damning evidence or a conviction is likely to influence a
future juror against the defendant. However, only other proceedings which are imminent
or pending may be taken into account under Section 4(2), which effectively means any
other case in which the accused has already been charged or where it is known that he is
about to be charged.
3. Where the separate trial or trials of other people, for example co-defendants, are likely to
be prejudiced by material arising during the proceedings. It is not uncommon for evidence
to be given in one trial, which is highly prejudicial to separate proceedings against other
parties. If the judge considers the risk to be substantial he may make an order postponing
publication. Again, the other proceedings must be imminent or pending.

9.3.3 Terms of the order

Orders made under Section 4(2) must be formulated in precise terms, committed to writing
and kept in permanent record for later reference (Practice Direction (Contempt: Reporting
Restrictions) (1982)). The order must be crystal clear in scope, and no wider than is
necessary (MGN v Bank of America (1995)). It must also state the reason why the order was
made and the time at which it shall cease to have effect.

The court must give notice to the press that a postponement order has been made. It must also
state that it is prepared to answer any queries about specific cases. However, failure on the
part of the media to discover the existence or precise terms of a particular order will not
result in avoiding liability for contempt of court (Practice Direction (Contempt: Reporting
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