On 13 June 2018 the Court of Appeal gave judgment on an appeal by the BBC against a reporting restriction order imposed on 22 January 2018, the first day of the trial of the Defendant, Sudip Sarker ( EWCA Crim 1341).
The court held that no reporting restriction should have been imposed because fair and accurate contemporaneous reporting of the trial would not have given rise to any risk of prejudice.
Mr Sarker had been charged with a count of fraud contrary to s.1 of the Fraud Act 2006. The prosecution alleged that he had dishonestly exaggerated his professional experience to obtain his appointment as a consultant surgeon at Alexandra Hospital in Redditch.
An investigation was subsequently made and the Royal College of Surgeons formally reviewed his position, resulting in his dismissal in 2015. The police also investigated a number of deaths of his patients.
Several articles were written concerning Mr Sarker’s competence and the surrounding investigation. On 21 November 2014 Sky News reported with the headline “Surgeon faces police probe over deaths”. An article published in the Birmingham Mail on 1 November 2016 stated that an investigation the newspaper carried out “was potentially flawed as it included patients of Sudip Sarker, a now shamed surgeon who was sacked for having DOUBLE the death rate of colleagues”.
These reports were however not the subject of the trial. Rather, the prosecution evidence in the trial focused on the allegedly false representations that Mr Sarker made prior to his appointment. The media reports were therefore irrelevant and would not be considered by the jury. However, the defendant’s counsel was concerned that knowledge of the inquiry and police investigation could become known by the jury and would be prejudicial.
That concern led to the defence applying for a reporting restriction under s.4(2) of the Contempt of Court Act 1981 which gives the court the power to make an order restricting reporting
‘where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings’.
The order will effectively postpone the publication of any material until after the trial has concluded.
Counsel for the defendant sought the Order at the end of the pre-trial hearing, submitting that publication should be postponed because it would “inadvertently link to other stories connected to it, and therefore may prejudice or expose this jury to that”. Counsel for the prosecution was neutral in his position and made no submissions.
The judge made the Order on the basis that the court had gone through a “very careful process of empanelling a jury who in fact knows nothing about Mr Sarker” and who would make no connection to the previous news stories about him as long as articles were not published during the trial. This possibility of discovering the earlier articles was said to prejudice the defendant so that he may not have a fair trial. The four-day period of the trial was also considered when assessing the prejudicial effect to the press in delaying publication.
Application to discharge
On 26 January 2018 the BBC sought to discharge the reporting restriction on three grounds:
First, any report of the trial would focus on the evidence that had already been placed before the jury, thus not giving rise to any risk of prejudice in of itself.
Second, the prejudicial material that did exist already existed in the public domain. A section 4(2) order cannot prevent republication of this material, though this is prohibited under section 1 of the Contempt of Court Act 1981, which the BBC and other media organisational are aware of and would not reasonably republish.
Third, that the jury have been directed they must not conduct their own research and must reach their verdict upon the evidence heard in court. Jurors must be trusted to faithfully adhere to their duties (R v B). If a juror was to ‘Google’ the defendant’s name, the prohibition on publishing a report of the trail would not prevent the juror from reaching the prejudicial material.
The judge refused to discharge the Order, agreeing with the prosecution that this was an exceptional case to be considered under section (2). The judge was concerned that contemporaneous reports of the trial might increase the risk that jurors would see this prejudicial information. When considering the competing interest of open justice, the judge considered that the short length of the trial (predicted four days) meant that interference with the open justice principle was limited.
The judgment of the Court was given by Lord Burnett LCJ. The Court of Appeal decided that the Order should not have been made. The appeal was therefore allowed and the Order quashed.
In asking whether a section 4(2) order is necessary, the correct approach to take is:
- First, to ask whether reporting would give rise to a substantial risk of prejudice to the administration of justice in the relevant proceedings. If such a risk exists, then
- The second question to ask is whether a section 4(2) order would eliminate it. If not, there would be no necessity to impose such a ban. Further, if there was a less restrictive means that would satisfactorily overcome the risk of prejudice, then an order should also not be made. If there is no other way of eliminating the perceived risk of prejudice, then
- The judge may still have to consider whether the degree of risk contemplated should be regarded as tolerable in the sense of being the ‘lesser of two evils’. This involves balancing the competing interests of the public, right to a fair trial, freedom of expression and open justice (ex parte Telegraph plc 98lB-C). The balance required an ‘intense focus on the comparative importance of the specific rights being claimed in the individual case’ (Re S). The order must be proportionate, prescribed by law and necessary in a democratic society.
The Order clearly should not have been made. Fair and accurate contemporaneous reporting of the trial would not have given rise to any risk of prejudice. In any event, a section 4(2) order would not prevent the publication of earlier prejudicial material or signposting it via links. This would put the publisher in breach of the strict liability rule and is therefore unlikely to occur under a reasonable and experienced editor.
At the heart of the defendant’s concern was the fear that members of the jury might embark of a search for further material. However,
“There was no reason to suppose that they would do so and a postponing order pursuant to s.4(2) was anyway an impermissible mechanism to reduce any such risk”. 
The Lord Chief Justice stressed that reporting restriction orders were measures of last resort ( vi)). If a less restrictive measure can be made, then the order should be avoided. This judgment serves to uphold the importance of the open justice principle – that all proceedings in courts and tribunals are conducted in public (subject to exceptions) – and the freedom of the press when the court is considering whether to make an order under s.4(2).
He also warned that “Judges must be on their guard against applications which are advanced at the last minute or without proper consideration of the principles in play” .
Considering the short trial period of four days delaying publication, Lord Burnett touched on the fact that, now more than ever, “stale news is no news” (Sherwood). Postponement orders are therefore likely to have a damaging effect on the public interest in reporting proceedings in courts (Re S).
Finally, Lord Burnett notes that defence counsel, in making his submissions for the order, made no reference to either Blackstone or Archbold, despite both having ‘succinct sections’ on the principles governing s.4(2). Rule 6.4(3) of the Criminal Procedure Rules, provides that a party who seeks any form of reporting restriction must (i) apply for the order “as soon as reasonably practicable”; (ii) notify every other party to the case and any other person that the court directs; and (iii) explain what power the court has to make the order and why an order in the terms proposed is necessary.
Oscar Davies is a media lawyer who will start pupillage at One Brick Court in October 2019.