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Report No. 200

(A) Meaning of 'substantial risk of prejudice' in Section 4(2):

In Attorney General v. Newsgroup Newspapers: 1986 (2) AllER 833 Sir John Donaldson MR stated (p 841) as follows:

"There has to be substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. This is a double test. First, there has to be some risk that the proceedings This is a double test. First, there has to be some risk that the proceedings in question will be affected at all. Second there has to be a prospect that if affected, the effect will be serious. The two limbs of the test can overlap, but they can be quite separate. I accept the submission of counsel for the defendant that substantial as a qualification of risk does not have the meaning of 'weighty' but rather means 'not insubstantial'or 'not minimal'. The 'risk' part of the test will usually be of importance in the context of the width of publication."

Again in Ex parte the Telegraph Group and Others 2001(1) WLR 1983 (CA) (Longmore, LJ, Douglas Brown & Eady JJ), after referring to Section 4(2), the Court of Appeal stated that in order to decide if the suppression order is 'necessary' in the context of Arts 6 and 10 of the European Convention, a three pronged test must be satisfied:-

"the first question was whether reporting would give rise to a non insubstantial risk of prejudice to the administration of justice in the relevant proceedings and if not, that would be the end of the matter; that, if such a risk was perceived to exist, then the second question is whether a Section 4(2) order would eliminate the risk, and if not there could be no necessity to impose such a ban and again that would be the end of the matter; that, nevertheless, even if an order would achieve the objective, the Court should still consider whether the risk could satisfactorily be overcome by some less restrictive means, since otherwise it could not be said to be 'necessary'to take the more drastic approach; and that thirdly even if there was indeed no other way of eliminating the perceived risk of prejudice, it still did not follow necessarily that an order had to be made and the Court might still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being the lesser of two evils; and that at that stage, value judgment might have to be made as to the priority between the competing interests represented by articles 6 and 10 of the Convention".

In that case, an order of postponement of reporting the case until after the conclusion of another trial arising out of the same closely related facts was passed and upheld by the Court of Appeal. The order was made during trial of a charge of murder against a police officer, Christopher Sherwood. The same Judge was to preside over another trial of 3 more senior police officers criminally charged in respect of the same incident with 'misconduct in public office', who were all under suspension.

The Court of Appeal agreed that all the three tests were satisfied. It rejected a plea that a Jury may not be prejudiced if properly directed by the Judge or on account of delay that may take place before the other trial. It stated that in high profile cases, the impact is substantial. It referred to Kennedy LJ's observation in Attorney General v. Associated Newspapers: (31 st October,1977, unreported) which were as follows:

"With potential Jurors receiving information in so many different ways, high profile cases would become impossible to try, if Jurors could not be relied on to disregard much of the information to which they may have been exposed, but that does not mean that they can be expected to disregard any information, whenever and however it is received, otherwise there would be no point in withholding from them any relevant information however prejudicial in content or presentation, hence the need for the Law of Contempt which we are required to enforce."

That was a case where the Evening Standard revealed potentially damaging information about the past records of IRA activists who were currently being tried inter alia for breaking prison. It was held that a one-sided picture cannot be allowed to be presented by the press. The Court of Appeal there observed as follows:

"The Court needs, therefore, to be very careful about sanctioning any course that would lead to information about a criminal trial being presented to the public in a way that actually distorted what was taking place, rather than merely summarising it. This might be a significant factor for the Court to weigh in a case where partial restriction was being contemplated as a realistic option".

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