Page 194 - Law and the Media

Reporting Restrictions
Faced with an imperfect order, the options open to a media company are limited. It can
publish or broadcast in defiance of the order and hope to escape punishment. However, until
an order is varied or set aside on appeal, a person who knowingly breaches it may be liable
to be committed for contempt of court. Defiance is, therefore, not recommended at all.

There are three ways to challenge an inappropriate order:

1. Application to the originating court
2. Judicial review
3. Appeal under Section 159 of the Criminal Justice Act 1988.

9.12.1 Application to the originating court

The cheapest, quickest and often most effective way to challenge an order restricting
publication is to raise the matter with the court that made the order. The media do not have
an absolute right to be heard, but there is plenty of guidance from the higher courts to the
effect that magistrates and judges should allow representations to be made by or on behalf
of the media. In 1993 the High Court overturned a stipendiary magistrate’s ruling that he had
no power to hear media representations against an order under Section 4(2) of the Contempt
of Court Act 1981 during the committal for trial of Larry Trachtenburg, one of the accused
in the Robert Maxwell affair. The court held that although the power to hear representations
by the media was discretionary, it would ‘. . . expect that the power will ordinarily be
exercised when the media ask to be heard either on the making of an order or in regard to
its continuance’.

If the reporter in court believes that an order restricting reporting has been wrongly made, the
following two options exist:

Informal note
Legal representation.

Informal note
The media company can set out its relevant objections and arguments in a note and hand it
to the court clerk to pass to the magistrates or judge. The note might for example, point out
that an order under Section 11 of the Contempt of Court Act 1981 has been made to ban
reporting of a name which came out earlier in the trial, or remind the court that an order
under Section 4 of the Contempt of Court Act 1981 has no time limit on it. This informal
route is frequently very effective. Upon receipt of such a note, the court is likely to look
carefully at what the statute allows it to do.

Legal representation
Alternatively, or additionally if the first option fails, the media company might instruct its
lawyer to make representations to the court on the propriety of the order. It is usually possible
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