Sarker [2018] EWCA Crim 1341; [2019] 1 Cr App R 3

R v Sarker [2018] EWCA Crim 1341 was an appeal by the British Broadcasting Corporation, supported by a number of other media organisations, against a reporting restriction order made under section 4(2) of the Contempt of Court Act 1981 at the trial of Mr Sudip Sarker at Worcester Crown Court. The Lord Chief Justice, Lord Burnett of Maldon, sitting with Mr Justice Stuart-Smith and Mr Justice Nicklin, granted permission to appeal, allowed the appeal and quashed the order.

Mr Sarker had been charged with a single count of fraud contrary to section 1 of the Fraud Act 2006. The prosecution alleged that between 9 May 2011 and 1 September 2011 he had dishonestly exaggerated his professional experience in order to obtain an appointment as a consultant surgeon at the Alexandra Hospital in Redditch, part of the Worcestershire Acute Hospital Trust, a post he took up in August 2011. Colleagues soon raised concerns about his competence. In 2012 the Trust undertook an investigation which included six incidents and a death. The results showed stark contrasts in complication rates for Mr Sarker’s patients when compared with other surgeons. He was suspended and then dismissed in 2015. There was a police investigation into a number of deaths of his patients.

These concerns had been the subject of substantial media coverage between 2013 and 2016. Reports appeared on the BBC News website, Sky News, Worcester News and the Birmingham Mail website. They detailed the suspension, the Trust investigation, the police inquiry into deaths, the referral of three deaths to a coroner and ultimately the defendant’s dismissal. However, the prosecution evidence in the trial focussed only on the representations made prior to appointment which were said to be false. The subsequent events, though widely reported, were not relevant to the charge.

On 22 January 2018, the first day of trial, His Honour Judge Juckes QC made an order under section 4(2) prohibiting publication of any report of the trial until after the jury returned its verdict. The application was made by defence counsel at the end of pre-trial housekeeping. Counsel handed the judge copies of press reports and submitted that there had been a drip of press coverage dealing with the disciplinary proceedings. His concern was that if the trial were published, it would inadvertently link to other stories connected to it and might expose the jury to prejudicial material. The judge made no immediate ruling and the jury were empanelled after questions had been asked to select jurors with no prior knowledge of the defendant. The judge gave conventional opening directions including an express prohibition on the jury carrying out research. The jury were then sent home and the judge returned to the application. Defence counsel identified that the application was made under section 4(2) and submitted that in light of the historic press coverage the judge should impose an order, which would last for no more than about ten days, being the estimated length of the trial, in order to ensure the trial was not interrupted and the jury were not exposed to adverse press coverage. The prosecution indicated its position on the application was neutral and made no submissions. There was no reference in the submissions to Blackstone, Archbold, the Criminal Procedure Rules or any authority. The judge made the order, giving a short ruling. He noted that there had already been appropriate coverage of the progress of the matter through other tribunals and the consequences, mixed with elements of the suggestion that there had been very serious consequences including loss of life. The jury had been selected knowing nothing about Mr Sarker and it would prejudice the defendant if matters were published during the trial such that there could not be a fair trial.

On 26 January 2018 counsel for the BBC appeared at the trial and applied to discharge the reporting restriction. He provided a skeleton argument setting out the statutory framework and key authorities. He drew attention to the Judicial College guidance. His essential submissions were that any report would necessarily focus only on the evidence before the jury and therefore could not by itself give rise to any risk of prejudice; that prejudicial material already in the public domain was not affected by the section 4(2) order and republishing it would be prohibited under section 1 of the 1981 Act in any event because it would create a substantial risk of unfairness; that no reasonable news editor would broadcast or publish prejudicial material or allow it to be published on their platforms including through links to previous news stories; that the jury had been directed not to conduct research and the criminal justice system relied upon jurors adhering to these directions; and that if a juror were minded to disobey, they would find the prejudicial material simply by searching for the defendant’s name, so the prohibition did nothing to prevent the risk. The prosecution now actively supported the defence application for the restrictions to continue. The judge refused to discharge the order. He recognised that orders under section 4(2) were measures of last resort but considered the case exceptional. He was concerned that contemporaneous reports might increase the risk that jurors would see prejudicial information. He noted that the jury had been selected knowing nothing about Mr Sarker, the hospital trust or the issues in the case and he feared that publication of the proceedings with photographs of the defendant would lead inevitably to discovery of those matters. The judge was satisfied that contemporaneous reports would give rise to a substantial risk of prejudice and that it was necessary to make an order. When considering the competing interest of open justice, he considered that the fact the trial was expected to last only a further four days meant the interference with open justice was limited.

The jury convicted Mr Sarker on 2 February 2018 and the judge discharged the order. Nevertheless, the BBC sought to challenge the order as a matter of principle. It was common ground that an appeal under section 159 of the Criminal Justice Act 1988 could be made even after the reporting restriction order had been discharged, following ex parte Central Independent Television (1991) 1 WLR 4. Mr Sarker was notified of the BBC’s application but did not seek to participate.

Mr Silverstone for the BBC referred to several leading cases on postponement orders and authorities on open justice and the role of the media. He submitted that for the reasons articulated in the submissions made to the judge it was wrong as a matter of principle to make the order. Mr Hallam QC for the prosecution did not dissent from any of the legal principles the BBC advanced but reiterated the unusual facts of the case and stated that all concerned were seeking in good faith to protect the fairness of the trial. On reflection he found it difficult to support the order.

Lord Burnett made a number of general observations. Applications for reporting restrictions were subject to specific provisions in the Criminal Procedure Rules, Rules 6.4 and 6.5, which must be followed unless unavoidable. A party seeking a reporting restriction must apply as soon as reasonably practicable, notify every other party and any other person the court directs, and explain what power the court has and why an order in the terms proposed is necessary. In section 4(2) cases, the explanation must address clearly, and ordinarily in writing, how contemporaneous fair and accurate reports of the trial will cause a substantial risk of prejudice and why a postponement order would avoid the identified risk.

Judges must be on their guard against applications advanced at the last minute or without proper consideration of the principles in play. Applications were often supported or at least unopposed by the other party, and a reporter in court was unlikely to be in a position instantly to advance considered submissions. It was when these factors were present that the court must be most vigilant to ensure careful consideration. The court was entitled to look to the prosecution for assistance, whose duty it was to ensure the court was aware of the relevant legal principles, following ex parte News Group Newspapers Ltd (2002) EMLR 9. Judges could also consider adjourning the application and giving notice to the media so they had the opportunity of making submissions. If the media were unable or unwilling to make representations, the obligation to ensure section 4(2) orders were only made when justified remained on the court. The reality was that most local newspapers would be unable to justify the cost of applying to discharge or appealing a reporting restriction order. The problem was exacerbated where the story was not one of the highest public interest such as to justify large expenditure. Even if a challenge was launched, the time constraints of the trial might mean it was not heard until too late to allow any contemporaneous reporting.

Judges were sometimes urged to grant an order postponing reporting because the trial would last only a short period, but the practical effect of even a relatively short postponement order was likely to reduce the chances of any reporting at all. A media organisation would have to commit the resources of a journalist attending the trial in the certain knowledge that only a fraction of what would have been published in daily reports would be likely to be published when the order was lifted. In the modern era of communications, it was truer than ever that stale news is no news, following Sherwood and Kelly v BBC (2001) Fam 59. Postponement orders, even of short duration, were likely to have a damaging effect on the very important public interest in reporting proceedings in courts. These points served to underline the importance of judges giving careful scrutiny to any application for reporting restrictions. There was comprehensive assistance in “Reporting Restrictions in the Criminal Courts” published by the Judicial College, and the principal textbooks Blackstone and Archbold also provided guidance. Cases in which reporting restrictions were considered were relatively rare, which exemplified the importance of all concerned proceeding with caution only after careful examination of the underlying principles.

Lord Burnett then set out the principle of open justice. The default position was the general principle that all proceedings in courts and tribunals were conducted in public, which was one of the two most fundamental principles, along with freedom of the press, as noted by Lord Denning MR in R v Horsham Justices ex parte Farquharson (1982) QB 762. At common law the court had no power to make an order postponing publication; any such power must be conferred by legislation, per Lord Hoffmann in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago (2005) 1 WLR 190. Attending court in person was not practical for any but a handful of people, and the only way that citizens could be informed about what took place in most courts was through media reports. In that way the media served both as the eyes and ears of the wider public and also as a watchdog, per Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) (2005) 1 AC 593. Full contemporaneous reporting of criminal trials promoted public confidence in the administration of justice and the rule of law. On a practical level, the public nature of court hearings and media reports fulfilled several objectives: it enabled the public to know that justice was being administered impartially; it could lead to evidence becoming available which would not have been forthcoming if reports were not published until after the trial had completed or not at all; it reduced the likelihood of uninformed or inaccurate comment about the proceedings; and it deterred inappropriate behaviour on the part of the court and others participating in the proceedings, following ex parte Kaim Todner (1999) QB 966.

Reporting restriction orders were derogations from the general principle of open justice. They were exceptional, required clear justification and should be made only when strictly necessary to secure the proper administration of justice. They were measures of last resort, following In re Press Association (2013) 1 WLR 1979. Any derogation from open justice must be established by clear and cogent evidence, following Scott v Scott (1913) AC 417.

The proper approach to a section 4(2) postponement order application was articulated by Longmore LJ in Sherwood and approved by the Privy Council in Independent Publishing Co Ltd. The first question was whether reporting would give rise to a substantial risk of prejudice to the administration of justice in the relevant proceedings. If not, that would be the end of the matter. If such a risk was perceived to exist, the second question arose: would a section 4(2) order eliminate it? If not, there could be no necessity to impose such a ban. Even if the judge was satisfied that an order would achieve the objective, he or she would still have to consider whether the risk could satisfactorily be overcome by some less restrictive means. If so, it could not be said to be necessary to take the more drastic approach, per Lord Lane CJ in ex parte Central Television plc. If the judge was satisfied that there was indeed no other way of eliminating the perceived risk of prejudice, it still did not necessarily follow that an order had to be made. The judge 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. It was at this stage that value judgments might have to be made as to the priority between the competing public interests of fair trial and freedom of expression or open justice, following ex parte Telegraph plc.

The word substantial in the section did not mean weighty but meant not insubstantial or not minimal, following Attorney General v News Group Newspapers (1987) QB 1 and Re MGN Limited (2011) EMLR 14. It was important to focus on what prejudice it was said would be occasioned by the reports sought to be postponed. In most cases, no possible prejudice to the immediate trial could arise from the publication of contemporaneous reports of the trial itself having regard to the fact that the jury would have themselves seen and heard the evidence or submissions that were the subject of the report; the express directions given to jurors at the start of a trial to try the case on the evidence presented during the trial, not to carry out any research themselves, and to ignore any media reports they might see of the case they were trying; and the principle that the court must proceed on the basis that juries had a passionate and profound belief in and commitment to the right of a defendant to be given a fair trial and their integrity was an essential feature of the trial process. Juries would abide by the directions of the trial judge because they were directions of law but also because they appealed directly to their own instinctive and fundamental belief in the need for the trial process to be fair, as stated by Sir Igor Judge PQBD in R v B (2007) EMLR 145 and approved in ex parte Telegraph plc. These statements were borne out by the evidenced-based conclusions of the Law Commission in their 2014 Report “Contempt of Court (2): Court Reporting” that jurors found the trial process absorbing and significantly prioritised what they heard during the trial over what they might have heard from the media outside the trial. The court must also proceed on the basis that media reports of the trial would be responsible, fair and accurate, following Sherwood, and would not include or link to any prejudicial material the publication of which would be a breach of the strict liability rule under sections 1 and 2 of the 1981 Act. This last point bore emphasising. Journalists and their editors would strive to avoid any publication which risked putting them in breach of the strict liability rule. They were well used to ensuring that on-line reporting of a trial did not refer to earlier prejudicial material or contain links to that material.

Judges might fear that publication on-line of fair and accurate contemporaneous reports would give rise to a risk of prejudice arising from third parties making prejudicial comments upon the reports of proceedings or providing links to prejudicial material. The court echoed two points made by Sir Igor Judge PQBD in R v B. First, the risk of prejudicial third-party commentary in user-generated content should not be exaggerated. Media organisations were able to disable any facility allowing comments to be made on website reports of jury trials and for good reason: publication of prejudicial

ex parte Central Independent Television [1991] 1 WLR 4
Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2005] 1 WLR 190
Re MGN Limited [2011] EMLR 14
Attorney General v Leveller Magazine [1979] AC 440
ex parte Kaim Todner [1999] QB 966
Croydon Crown Court Ex parte Trinity Mirror plc [2008] EWCA Crim 50, [2008] QB 770, [2008] 3 WLR 51, [2008] 2 All ER 1159, [2008] 2 CrAppR 1
Khuja v Times Newspapers Limited [2017] 3 WLR 351
ex parte News Group Newspapers Ltd [2002] EMLR 9
Kelly v BBC [2001] Fam 59
ex parte Farquharson [1982] QB 762
re Press Association [2013] 1 WLR 1979
Scott v Scott [1913] AC 417

Central Criminal Court ex parte The Telegraph & Ors [1993] 1 WLR 980
Re S (FC) (a child) [2004] UKHL 47, [2005] 1 AC 593, [2004] 3 WLR 1129, [2004] 4 All ER 683

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