Two recent cases confirm that reporting restrictions on court proceedings will only be imposed as a measure of last resort.
In line with the core principle of open justice, the general rule is that justice should be administered in public: proceedings must be held in public, evidence must be communicated publicly, and the Court should not prevent the fair, accurate and contemporaneous reporting of proceedings by the media unless strictly necessary. As to reporting, there are important statutory (automatic) restrictions; for example, victims of a wide range of sexual offences have lifetime anonymity under the Sexual Offences (Amendment) Act 1992. The Court can also impose a discretionary reporting restriction, including under section 4(2) of the Contempt of Court Act 1981, which allows for the postponement of reporting in order to avoid a substantial risk of prejudice to the administration of justice. The onus is on the party seeking the restriction to show that a reporting restrictions order (RRO) is justified. Section 4(2) is, for instance, regularly invoked in cases involving sequential trials, to postpone the reporting of specific parts of the evidence in the first trial that could prejudice the defendants in the second trial.
In the case of R v Sarker (2018 EWCA Crim 1341), the Defendant, Sudip Sarker, was alleged to have dishonestly exaggerated his professional experience to gain employment as a surgeon. He was suspended and subsequently dismissed following an independent review by the Royal College of Surgeons then, following a police investigation, charged with a single count of fraud. On the first day of trial, Mr Sarker was successfully granted an RRO under section 4(2), which was challenged by the BBC but upheld on the basis that contemporaneous reporting might increase the risk of jurors accessing prejudicial information. The Judge reasoned that the interference with open justice would be limited, given the short, estimated trial length of 4 days.
Even after Mr Sarker had been convicted and the order discharged, the BBC appealed the decision to grant an RRO, and the Court of Appeal agreed that the order "should not have been made". Lord Burnett LCJ, handing down judgment, held that "Fair and accurate contemporaneous reporting of the trial would not have given rise to any risk of prejudice" and that granting the RRO "would not prevent publication of earlier prejudicial material or signposting of it via links".
Barely a week later, Press Gazette reported on another case in which a RRO had been successfully challenged. Lawyers for one of the Defendants, Mr Adrian Navindre Parasram, who was appearing on child abuse charges, successfully applied at Barkingside Magistrates' Court for a temporary RRO on the basis that an interim anonymity order would give Mr Parasram time to seek a High Court injunction on "human rights grounds". Lewis Berrill, a reporter at the Yellow Advertiser, renewed his challenge before Snaresbrook Crown Court and this time succeeded in having the RRO quashed. The Judge accepted that the Defendants' previous request had proved vexatious - the High Court injunction had been issued and withdrawn almost immediately - and ruled that they had not demonstrated any justification for anonymity or reporting restrictions.
This recent case law highlights the ever-present conflict between the principle of open justice and the necessity (on occasion and normally temporarily) to restrict the publication of prejudicial material. It also confirms that RROs are exceptional, and susceptible to challenge. In the event that an RRO is considered appropriate, it should be sought on notice, as soon as reasonably practicable, and the application should explain the specific legislation being relied upon as well as why an order is necessary. As Lord Burnett LCJ cautioned in Sarker: "Judges must be on their guard against applications which are advanced at the last minute or without proper consideration of the principles in play."