MGN Ltd & Ors, RE Application for Leave To Appeal [2011] EWCA Crim 100

[2011] EWCA Crim 100Case No 2011/00161/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 25 January 2011
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE EADY
and
MR JUSTICE SIMON
__________________
APPLICATION FOR LEAVE TO APPEAL
under section 159 of the Criminal Justice Act 1988
by
MGN LIMITED & Others
__________________
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court
__________________
Mr G Millar QC and Mr A Wolanski
appeared on behalf of the Applicants
Mr W Boyce QC
appeared as a representative of those defending in the First Trial
Mr A Hall QC
appeared as a representative of those defending in the Second Trial
Mr P Brogan
appeared as a representative of those defending in the Third Trial
Mr M Heywood QC and Mr J Evans
appeared on behalf of the Crown
____________________
J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an application by representatives of the media under section 159 of the Criminal Justice Act 1988 for leave to appeal against the order made by His Honour Judge Moss QC sitting at the Central Criminal Court on 20 December 2010 and his decision dated 6 January 2011 confirming that order. The order provides:
"In order to avoid substantial risk of prejudice to the administration of justice in these proceedings (or pending or imminent proceedings) the court orders that there should be no report published which refers to today's or future proceedings, Until further order."
The reference to "until further order" was recorded in error. The order should read: 2. "Until the conclusion of the third trial." The avowed purpose of making the order was 3. "to protect the fairness of the trial from the publication of the material referred to, which, if published might have a substantially adverse effect on the fairness of the proceedings."[2]The order was made in relation to three trials listed for hearing at the Central Criminal Court, T20107117, T20107126, T20107210, T20107299, in accordance with section 4(2) of the Contempt of Court Act 1981. No other legislative provisions were considered.

The avowed purpose of making the order was

[3]The applicants require a three day extension of time. It is not entirely clear why, when Judge Moss considered this issue on 20 December 2010, so many members of the media now participating in this application were apparently unaware of the proceedings and therefore did not apply to participate in them. Whatever the reason, however, the application raises an issue of importance for the purpose of pending trials for murder involving no less than twenty young defendants. The issues merit our attention. We shall therefore extend time and grant leave. We shall deal with both decisions by Judge Moss as if they had been made in a single hearing.[4]For present purposes we have heard Mr Millar QC on behalf of the media; counsel for the Crown at trial, Mr Heywood QC; and counsel representing the different defendants in each of the three trials, that is the current trial and the two forthcoming trials, who have made submissions of common interest to all the defendants in the respective trials. We have also considered written submissions advanced by one or two of the counsel for the other defendants.[5]The litigation arises from the prosecution of twenty defendants aged between 15 and 18 years for the murder of Sofyen Belamouadden, a boy born in November 1994, who was aged 15 years at the time of his death. He was killed on 25 March 2010, shortly before 6pm, when he was chased across Terminus Place at the front of Victoria Station in London by a group of young men, some of them visibly armed. At least four of those pursuers peeled away and chased another young man. But Sofyen Belamouadden was chased by a large group. They caught him at the top of the stairs to the District and Circle Line ticket hall of the underground station at Victoria, where he was attacked. He was pushed and fell down a flight of stairs into the ticket hall. While there, for a continuous further period he was attacked, stabbed and slashed with knives, and beaten and kicked.[6]He sustained nine incised wounds, all of which were of significant severity and depth. His injuries included eight stabbings, a slashing injury and further blunt impact injuries. He suffered cardiac arrest at the scene. Death was certified at hospital later that same evening. The stark recital of the facts is sufficient to demonstrate why the death of this young man caused, and remains the cause of public concern and legitimate interest. It was, after all, rush-hour at a mainline station in London. A boy of 15 was chased and attacked, and he suffered serious injuries which killed him. This was a very public incident which took place in a very public area.[7]The case for the prosecution is that the death of this young man was the result of growing and simmering tensions between pupils at a sixth form college in London, at which eighteen of those facing trial were then students, and their associates, and a group of others from a different area of London with which the deceased was connected, as they passed through Victoria Station on their way to and from their places of education.[8]On the previous day, 24 March, there was an incident at Victoria Station when members of the two groups met and clashed. There was a short fight, the details of which are irrelevant to our decision. After the fight members of the group from the sixth form college are alleged by the prosecution to have communicated with one another via mobile telephones and the Facebook social networking website. The prosecution case is that these communications were not coincidental. They indicated an intention to engage in serious violence.[9]The twenty defendants are indicted with the same offences: count 1, conspiracy to cause grievous bodily harm; count 2, the murder of Sofyen Belamouadden; and count 3, violent disorder. The charge of murder is based variously on alleged responsibility of one or more defendants as joint principals or as aiders and abettors (for example, as suppliers of weapons or offering encouragement) and/or secondary liability as parties to the wider violent joint enterprise. For case management reasons the trial has been divided so that there will, in fact, be three separate trials. The first trial comprises the defendants whom the Crown allege entered the ticket hall and were present at the time of the fatal attack, save for one further defendant who is alleged to have purchased knives and then involved himself in chasing the second young man. The second trial includes those who entered the ticket hall and some who peeled off from the main attack on the deceased and chased the other young man. The third trial includes defendants who joined in the chase of the deceased, but only one of whom on his own alleged admission can be demonstrated to have entered the ticket hall. However, none of the defendants in the first trial will be defendants in the second or third trials; and none of the defendants in the second trial will be defendants in the third trial. In reality, this is a single trial in which, for case management reasons and the practical organisation of the trial process, the division of trials has had to occur.[10]Defence statements have been received from the majority of the defendants. Why they have not been received from all of them is a question into which we shall not go, but it is unlikely that any defendant will contend that the use of any degree of violence against the deceased boy was lawful or justified in law.[11]In summary, therefore, the primary issue in the case of each defendant is whether it can be shown that he or she was party to an unlawful agreement to cause serious harm, and then took part in the events at Victoria Station, which amounted at the very least to a violent disorder, and did so knowing that a range of knives and other dangerous weapons were being taken to the scene and that it was at the very least in contemplation that these potentially lethal weapons might be used with intent to do really serious injury or to kill. It will, of course, ultimately be for the juries to decide whether Sofyen Belamouadden was the victim of murder. On the face of it, however, the more difficult question to be faced by each jury is whether it has been proved as against each individual defendant that he or she was guilty of murder or indeed any other of the alleged offences.[12]The first trial began on 4 January 2011. The first evidence was called on 13 January. The time estimate is twelve weeks. Consistently with the timetable, the second trial is fixed for 11 April, with an estimate of eight weeks. The third trial is fixed for 13 June, with an estimate of six weeks. In accordance with practice, the prosecution has served its case papers on each of the defendants. The papers include statements from approximately 360 witnesses, of whom a small majority are eyewitnesses of fact. Some of the witnesses are youngsters who attended college with the defendants. In the first trial, something like 55 adult eyewitnesses are fully bound to attend to give evidence, and five of the younger witnesses are similarly bound. It is likely that all five of the young witnesses, and a significant proportion of the other eyewitnesses, will be required to give evidence during either the second or the third, or possibly both the subsequent trials.[13]The effect of the order made by Judge Moss is a blanket prohibition on any reporting of any aspect of any of the three trials until the conclusion of the third trial. The fact that the prohibition is a blanket one is underlined by the fact that, as a result of the order, not even, for example, the opening of the case by the Crown at the first trial may be the subject of reporting. Judge Moss is a highly respected and experienced judge. It was no doubt for that reason that he was entrusted with a case of such importance and potential complication. It is clear from the transcripts that he perfectly well understands the principles of open justice and the public advantages of fair, contemporaneous reporting of criminal proceedings. His decision was based on his judgment that the interests of a fair trial, and the interests of both the prosecution and the defendants in a fair trial, required the imposition of this wide-ranging reporting restriction. His reasoning is clear. Focusing his attention on section 4(2) of the Contempt of Court Act 1981, he decided that accurate reports of any part of the three trials before the conclusion of the third trial, even if published contemporaneously and in good faith, would create a substantial risk of prejudice to the administration of justice in those proceedings or in any other proceedings, pending or imminent. To avoid that risk, he ordered that publication should be postponed. Unless he was satisfied about that risk, the order could not have been made.[14]In R v Sherwood, ex parte the Telegraph Group Plc and Others [2001] 1 WLR 1983, commented on with approval in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago and Another [2004] UKPC 26, [2005] 1 AC 190, it was suggested that any possible confusion in relation to applications under section 4(2) of the 1981 Act could be avoided by a systematic approach to applications to restrict media coverage of court proceedings. The first question is whether the reporting would give rise to a not insubstantial risk of prejudice to the administration of justice. The second question is whether an order under section 4(2) would eliminate that risk. If not, there would be no necessity to impose such a ban. Again, that would be the end of the matter. If, on the other hand, an order would achieve the objective, the court still has to consider whether the risk could satisfactorily be overcome by less restrictive measures. Third, even if there is no other way of eliminating the perceived risk of prejudice, it still does not follow necessarily that an order has to be made. This requires a value judgment. The court highlighted the need for care to avoid confusing the senses in which the word "necessary" is used in the legislation. Adapting Viscount Falkland's famous aphorism, the court's approach should be that, unless it is necessary to impose an order, it is necessary not to impose one; and if it is necessary to impose an order at all, it must go no further than necessary. In summary, an order under section 4(2) of the 1981 Act should be regarded as a last resort.[15]To reach his conclusion, Judge Moss examined first the question whether fair and accurate reporting of the first trial would create or represent any risk to the integrity of the juries in the second or third trials, in effect prejudicing them in such a way that they might not perform their duty. He decided that any potential problems would be addressed in the usual way by clear and unequivocal directions with which the jury could be expected to comply. We have been asked to reconsider the same point. We acknowledge that this is a very high profile case, that there will be a number of trials arising from the same event, and that it is a case likely to create a considerable emotional response.[16]All that aside, however, in our judgment the juries in the second and third trials can be trusted to reach an unprejudiced verdict in relation to the alleged involvement in the offences of each and every individual defendant in accordance with the evidence. We maintain a positive view about the robustness of jurors. In In the matter of B [2007] EMLR 5, this court emphasised that "juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright. It is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process." Having reflected on the submissions advanced on this aspect of the case, we do not regard the possibility of jury misconduct as providing any basis for the order made under section 4(2) of the 1981 Act. On this aspect of his judgment, we agree entirely with the trial judge.[17]It was after he examined the position of witnesses that Judge Moss satisfied himself that the blanket prohibition on reporting of the proceedings of the first trial was necessary. He had in mind that some of the witnesses were very young; that many of them came from the same places of education as the defendants; and that they would be exposed to the risk of potential hostility if they gave evidence for the prosecution. That would be bad enough in itself, but it would lead to the further risk that any evidence which they gave at the second or third trial would be altered or diminished, or in effect tainted by the unpleasant situation in which these witnesses might find themselves. It was therefore concluded that the effect of reading or studying reports of the proceedings in the media might create pressure on them. If that is the case, then so might pressure be created by others who knew what they had said. As we have indicated, the statements of the witnesses have been served on the defendants. The identity of each and every witness is known to each and every one of the twenty defendants. Their identities certainly are not secret.[18]Special measures are being taken in court to give the young witnesses the protection to which they are entitled. But however it is examined, notwithstanding any reporting restrictions, the defendants themselves would have not the slightest difficulty in identifying the witness giving evidence and informing the entire community of the fact. Some of the defendants are on bail. Some of them will have families and friends attending the proceedings. None of this can be avoided by the imposition of the order under section 4(2). In effect, it is already too late, and would inevitably be too late, for the processes under section 4(2) to be deployed for the purposes of protecting these witnesses from whatever troubles may be anticipated for having assisted the police or (if they do) for having given evidence at the first trial.[19]In amplification of the submission we have just considered, it was argued that the reporting of the evidence of witnesses will lead to witnesses modifying their own accounts, not merely because of threats (or concerns about threats) but because if they look at reports of the evidence they may be subject to "memory adjustment", which sometimes occurs quite innocently as time goes by since an incident was witnessed, and further accounts about it emerge and are seen and noted by the witness.[20]This all presupposes that the witnesses will read all the reports published in the media about the trial, and that the media will publish all the evidence given by all the witnesses. In theory, that is possible, although in reality unlikely. The problem of witnesses giving evidence at trial which is inconsistent with earlier statements, or indeed giving evidence at a second trial, which is different from the evidence they have given at a first trial, is not new. The solution is not always easy and straightforward. But to the extent that evidence is changed or embellished to the disadvantage of any defendant, the witness can be cross-examined on the basis of his or her earlier statements or evidence. The greater concern, in reality, is for the prosecution: that the witnesses will not come up to their original statements or evidence when, unless they are a hostile witness in the sense understood in the criminal justice system, the prosecution cannot cross-examine them. In the result, without minimising the difficulties which may lie ahead when witnesses give evidence about the same matters on a second or third occasion, our focus in the present context is whether the blanket prohibition on fair contemporaneous reporting of the first trial would extinguish or significantly diminish these difficulties. We very much doubt whether they would do so. Indeed, we have reflected on many of the concerns carefully and succinctly expressed on behalf of the defendants and we have come to the conclusion that those concerns and the consequences of reporting in any very high profile case would be common. The issue of how these cases are tried and how they are conducted by counsel on each side exercising their responsibilities is never easy, but there is nothing specific about this case which is different from that of any other high profile case -- at any rate for the purposes of the imposition of a blanket prohibition on reporting under section 4(2) of the 1981 Act.[21]We must remind ourselves that this section is not concerned with inaccurate or unfair reports of court proceedings, or of observations or comments made anywhere which would constitute contempt of court. Lifting this blanket ban, or part of it, would not suspend the ordinary principles which apply to contempt of court. Those principles are always in place and in allowing the appeal, as we shall, we are not implicitly approving anything other than fair, accurate and contemporaneous reporting of the proceedings as they take place at the Central Criminal Court. As section 4(2) imposes limits on fair and accurate reporting on proceedings, for all the reasons encapsulated in two short words "open justice" -- and surely such an elementary principle requires no citation of authority -- an order is only to be made, as we have already said, when it is necessary for the purposes of ensuring that justice is fairly and properly done in the cases in which an order has been made.[22]Without minimising the burdens and difficulties faced by witnesses, the use of section 4(2) of the 1981 Act for the purposes of alleviating the difficulties of giving evidence, even if evidence has to be given in more than one trial, is rarely appropriate. Of course, if the conditions for an order under section 4(2) are established in the case of a particular witness or witnesses so that the order is justified in accordance with principle, then the order should be made. But in essence the protection of witnesses is more appropriately secured by statutory measures designed for the purpose, such as section 39 of the Children and Young Persons Act 1933, or sections 23-30 of the Youth Justice and Criminal Evidence Act 1999, or any further legislation designed to enable witnesses to give of their best.[23]For the reasons set out in this judgment, this appeal must be allowed and the order imposing the blanket prohibition on publication of fair and accurate reporting of the first trial, or the second or the third trial will be quashed. Any applications which may be made in relation to individual aspects of the present trial or the forthcoming trials should be made to Judge Moss, as the trial judge, and he will consider any individual applications in the context of the principles as we have endeavoured to state them in the course of this judgment. MR MILLAR: My Lord, may I just raise the question of whether the Crown ought to be ordered to pay some or all of the media's costs in bringing this appeal? There is a power to make such a costs order if the court thinks fit on the disposal of the appeal -- and the guideline authority is Newsgroup Newspapers Limited which suggests that where the Crown actively supports an application for an order which is struck down on appeal, such costs order may be made against the Crown. THE LORD CHIEF JUSTICE: We know that. I will speak to my colleagues and come back to you. (The court conferred) THE LORD CHIEF JUSTICE: Before you continue with your submission, I think you should know that our view is that the Crown has endeavoured to assist in the administration of justice and has not taken a partisan position. MR MILLAR: Then that makes the application hopeless. THE LORD CHIEF JUSTICE: I think it does. Mr Millar, you have done very well today without saying very much. MR MILLAR: I am very conscious of that, but I hope it was not regarded as inappropriate to raise the issue. THE LORD CHIEF JUSTICE: Of course it was not. MR MILLAR: The media are often put to not insignificant costs and we thought it was important to make the application for costs. THE LORD CHIEF JUSTICE: Until we told you what our view was about the role by the prosecution, your application was fully justified. MR MILLAR: I am grateful. THE LORD CHIEF JUSTICE: Thank you. MR BOYCE: My Lord, would you forgive me if the answer to my next query is obvious? It is simply my ignorance which causes me to get to my feet. But if my Lords' order is taken at face value that the appeal is allowed, then the order ceases to have effect immediately. THE LORD CHIEF JUSTICE: Yes. MR BOYCE: And publication might take place in the morning -- THE LORD CHIEF JUSTICE: Yes. MR BOYCE: -- before the opportunity to address Judge Moss on any particulars by my learned friends. Is that the intention of the court? THE LORD CHIEF JUSTICE: Well, so far we have not been told of anything which, so far at any rate, leads us to think that an order would be appropriate. None of the young witnesses in question have yet come to give evidence, have they? MR BOYCE: My only concern, my Lord, is that although we have as it were representative authority from the other seventeen defendants, it was a more broad-brush approach and individual submissions from the other seventeen may have entirely escaped us for obvious reasons. I simply draw that to the court's attention. THE LORD CHIEF JUSTICE: Thank you. Anything you want to say, Mr Hall? MR HALL: I support my learned friend's concern and if it were possible -- technically possible -- to give effect to your Lordship's order within, say, 48 hours, it would provide us with the opportunity we need to raise any matters with the learned trial judge. I simply do not know. THE LORD CHIEF JUSTICE: You have not been there. MR HALL: No. THE LORD CHIEF JUSTICE: Mr Brogan, do you want to say anything? MR BROGAN: I have nothing to add. THE LORD CHIEF JUSTICE: Mr Heywood? MR HEYWOOD: My Lord, we have thought of what the alternative might be. They seem to us to be these: section 39 orders in relation to the young defendants in each of the three trials, which did exist previously but have rather been subsumed by the making of the 4(2) order; and section 39 orders in relation to the three young witnesses of the five identified. We will further give consideration to whether or not there is justification in applications for a reporting direction in the case of the other two -- so those aged 18 or over -- under section 46 of the Youth Justice -- THE LORD CHIEF JUSTICE: Forgive me, where have we got to in the proceedings that needs us to make any order at all which cannot be made to Judge Moss tomorrow morning or Thursday or Friday morning? MR HEYWOOD: My Lord, forgive me, I am not suggesting that this court should actively consider making an order. I only raise it so that my Lord does understand what it is that the Crown at least will draw to the attention of Judge Moss so that he might consider it tomorrow or as soon as counsel may be heard. THE LORD CHIEF JUSTICE: Well, we were giving a pretty broad hint in relation to section 39, but do you make any submissions to us about any potential prejudice to any of these trials if we do not impose any restrictions ourselves tonight? MR HEYWOOD: Only in one respect, my Lord, and that is this. Any reporting of any matter likely to identify any role played by a defendant in a subsequent trial -- that seems to us to be of significance. It may be opened in specific terms -- I have in mind the carrier of the sword and so on. That is the one matter which it seems to us is capable of attracting submissions on behalf of those defendants. THE LORD CHIEF JUSTICE: Very well. Mr Millar? MR MILLAR: My Lord, I confess I am puzzled. If there is no lawful basis for the reporting restrictions, what is the lawful basis for not doing anything for 48 hours? The order has been lifted and it can be reported. THE LORD CHIEF JUSTICE: The difficulty may be this. The order was a blanket prohibition. We have held that it should not have been made. There may, if the application has been made in respect of, shall we say for the sake of argument, Witnesses A, B and C, who, for the sake of argument, were 13 years old -- I know they were not, but if that application should have been made, then the question is whether we should make an order now, holding the position so that an application can be made which, if it should have been made and would have been made successfully, can be made and should be made successfully? I am not at all sure that this is not a storm in a teacup, but I need to know where we are going. MR MILLAR: May I take instructions so that I can find out what our position is? THE LORD CHIEF JUSTICE: Yes, by all means. I am speaking for myself -- and if my colleagues have anything to say on it they will say so themselves -- my only concern relates to the five people we have called the "young witnesses". MR MILLAR: Yes. 27. (The court adjourned for a short time) THE LORD CHIEF JUSTICE: Mr Millar, before you address us -- Mr Heywood, do we have this right? We are not sure that we have, but we have been talking about it outside. There were orders under section 39 of the Children and Young Persons Act? MR HEYWOOD: There were in relation to the defendants, yes, THE LORD CHIEF JUSTICE: Ah, just for the defendants? MR HEYWOOD: Just for the defendants, not for the witnesses -- THE LORD CHIEF JUSTICE: Right. MR HEYWOOD: -- because we have not even come close to the stage that it was in contemplation to articulating in any form that was promulgated as to what they might say. THE LORD CHIEF JUSTICE: Right. You have answered our question, thank you. Mr Millar? MR MILLAR: My Lord, I understand from my learned friends that they will make any applications they need to make to the learned judge tomorrow and we are content in effect that the ruling of this court should in effect be stayed for the course of tomorrow to enable them to make any applications they wish, if that is the way to do it. THE LORD CHIEF JUSTICE: I am not sure about that. If the press have their own self-denying ordinance, well they have their self-denying ordinance. That is fine and good and we welcome it, but before we made an order we need to be sure we have the power to make an order. At the moment, if we are looking at the power to make an order, what is the power? To say that although we think the order should not have been made, somehow we will continue some of it in force? MR MILLAR: No, I have said what I have to say about that. I am just saying what our position is because there is concern about this. If there is a route through it -- if there is a way through it which the court can find, having given its ruling -- THE LORD CHIEF JUSTICE: Well, somebody will have to tell us what the route is. MR MILLAR: Yes, well, that is not my job. THE LORD CHIEF JUSTICE: No. MR BOYCE: Thank you for looking at me, my Lord. I will do my best. My Lord might consider that it is in the interests of justice to allow proper submissions to the proper tribunal for the proper balance between the risk of an unfair trial against the interests of the media who have conceded in relation to 24 hours that this court should make its own section 4 order imposing a blanket prohibition on publicity for 24 hours to enable a proper consideration of the balancing considerations to be made tomorrow. That time frame will enable a proper reflection of the interests of the public on the one hand against the interests of protection where necessary or appropriate on the other, and therefore you will be making a positive order with a time limit attached to it. THE LORD CHIEF JUSTICE: Very well. Thank you. Mr Hall, do you want to say anything? MR HALL: I was going to defer to Mr Brogan. THE LORD CHIEF JUSTICE: All right. MR BROGAN: Your Lordships have power to vary the order. The variation we would suggest is one which foreshortens the period of time in which reporting is postponed so that it is not postponed until the conclusion of the third trial, but it is postponed until four o'clock tomorrow afternoon. THE LORD CHIEF JUSTICE: But we have held that the order was not properly made. I understand the difficulty, but you must understand ours. If we do not think the order was properly made, we cannot create a power in the court somehow to make it continue. To make an order that it should continue until four o'clock tomorrow afternoon, we would have to be satisfied that any publication of the proceedings would constitute a substantial risk to the fair trial. How are we going to be satisfied of that on the material that we have? MR BROGAN: If your Lordships are satisfied that reporting those aspects which relate to the witnesses and possibly to the roles of those in trials 2 and 3 might prejudice a fair trial, then albeit the order that His Honour Judge Moss made was found to be too wide in scope, the overriding concern now, with respect, must be the fairness of the trial in relation to those witnesses and in relation to trials 2 and 3. I respectfully submit that although the order that your Lordships have found was too wide, it can in justice remain until this time tomorrow afternoon. THE LORD CHIEF JUSTICE: Thank you. Mr Heywood, can you help us? MR HEYWOOD: The only powers of the court are governed by section 159, which includes variations. Whilst we understand the court's concern that the legal basis for the making of this order in these terms is not found to exist, then it is at least possible to address the question of scope and time and duration. Alternatively -- and this is the only alternative that occurs to us -- is to consider the positive making of certain other orders. That brings with it an exercise of jurisdiction which this court has so far not sought to do, reflecting, no doubt, the view that the trial judge is better placed to deal with the particulars of such orders. If that power does exist -- in other words, by way of variation of this order to impose lesser restrictions on reporting than a blanket ban, it seems to us that the court does have some power to act. For our part, having regard to who are the applicants in these proceedings, we would be content with the self-denying ordinance, but on the understanding that those applications to which I referred earlier will be made at least for the learned judge's consideration tomorrow morning. THE LORD CHIEF JUSTICE: I am discussing this with Mr Heywood, but you are all parties to the conversation. Let us begin by asking whether there is anything in the judgment that we have just given which could possibly attract a suggestion of substantial prejudice to the interests of justice? MR HEYWOOD: No, I accept my Lord has as it were found that the order made lacks justification at the point of identifying a substantial risk which is amenable to the making of an order of this kind. So that is a difficulty with the applications to vary. THE LORD CHIEF JUSTICE: So then we go to whatever it is you said in your opening, right through to the end, that a fair and accurate report of contemporaneous proceedings would involve, would it not, your opening -- if that is what was chosen to be reported -- MR HEYWOOD: Yes. THE LORD CHIEF JUSTICE: -- but then where evidence has been given, and your opening failed to indicate correctly what the evidence would turn out to be, as always happens with counsel for the prosecution, a fair and accurate report of your opening would have to say:
"But Mr Heywood got that all wrong. The witness did not say this, he said the direct opposite. It was not", for the sake of argument only, "
Mr Millar who had an axe in his hand, it was Mr Hall who had an axe in his hand". So a fair and accurate report of that would have to take into account that Mr Hall had been identified. MR HEYWOOD: Taking that as an example, in fact that has not happened in this case. THE LORD CHIEF JUSTICE: I appreciate that it has not happened -- yet. MR HEYWOOD: Yet, anyway. THE LORD CHIEF JUSTICE: All right. Thank you very much. Is there anything that you want to add, Mr Boyce? MR BOYCE: Simply this, my Lord. One of the factors which might influence the court is to consider that the submissions by all defence counsel -- twenty of them variously -- were in a sense truncated by the nature of the proceedings in the court below in that any individual considerations in which they may have held concerns were assuaged instantly by the nature of the blanket order and therefore we have real reason to suspect -- and some of the considerations raised by Mr Heywood emphasise the point from his example -- that had each defence counsel not had the comfort of a blanket order, there may have been lesser applications and we simply cannot speak for the other seventeen in that detail. Now, that balance between seventeen being denied the opportunity to make submissions, irrespective of the reasons that they were pre-empted from making them, as against a delay which is conceded to be reasonable on behalf of the media, should there be power to make it, is such that the court might think that the order for 24 hours, which is suggested, is necessary in the interests of justice to enable those who have potentially inchoate submissions but have been defeated by the blanket order thus far, the opportunity of making those submissions tomorrow morning. That is how I would put it. THE LORD CHIEF JUSTICE: Mr Millar, have I understood your position correctly? So far as the media whom you represent are concerned, they would as a self-denying ordinance be prepared not to report the proceedings in the Crown Court, but they would be prepared -- if they want to and if they wish -- to report the proceedings before us today? MR MILLAR: My Lord, I cannot give that guarantee. THE LORD CHIEF JUSTICE: I do not see how you can. MR MILLAR: I cannot give the first guarantee and the second proposition is too wide. They will want to report this hearing. 28. (The court retired to confer) THE LORD CHIEF JUSTICE: As to today's proceedings, we can see absolutely no reason why anything that was said today should not be reported as a fair and accurate report of the proceedings before us. As to the proceedings which have already begun in the Crown Court, we are, at the moment at any rate, unable to discern any jurisdiction in this court to make an order prohibiting publication of fair, accurate and contemporaneous reports. If we had had the power under the Children and Young Persons Act, which we do not think that we have, we would have made an order preventing the publication of the identification of the five young witnesses (or the three young witnesses who are still children and young persons) pending any application to Judge Moss. But we do not have the power. We shall simply invite the press kindly to exercise their judgment and discretion about this, and invite them not to identify them. In any event, that is the carrot. The stick is that if the report that emerges tomorrow, which identifies them or is in any way not a fair report, or subject to inaccuracies because of events which have overtaken different parts of the case, then there may be problems for the press in publishing. Your editors may be fairly pleased with today's proceedings. The defence can make an application to the judge tomorrow morning and he will make whatever orders he thinks right. MR BOYCE: Thank you. 29. _______________________________________

Cited in 1 later judgment