Report No. 200

Chapter VIII

Postponement of Publications by Court: Whether 'substantial Risk of prejudice as in UK inappropriate?

The issue of orders by the Courts, - postponing publications to prevent prejudice to a suspect in an impending or pending criminal case is of great importance. The punishment of a person who makes publication amounting to undue interference of course of justice under section 3 of the Contempt of Court Act, 1971 is not always sufficient nor does it in any way help the suspect or accused. Question is whether such prejudicial publications may be directed to be postponed by a general or specific order.

Prior restraint and subsequent punishment are distinct

There is a well recognized distinction between prior restraint and subsequent punishment. In Constitutional Law (4th Ed)(1991) by John E. Nowah & Ronald D. Rotunda, while referring to the position in USA it is stated: (p 970)

"While it is no longer true that the first amendment means only freedom from prior restraint, prior restraint is still considered to be more serious than subsequent punishment".

Mr. A. Bickel states that a 'criminal statute 'chills' while prior restraint 'freezes' (see the Morality of Dissent, p 61 1975). In our view, if it is 'prior restraint' but only 'postponement' of publication, there is no 'freezing' at all.