Neutral Citation Number: [2016] EWCA Crim 887
Case No: 201505893C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
His Honour Judge Griffith
T20157187
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/07/2016
Before :

LORD JUSTICE GROSS
MR JUSTICE WYN WILLIAMS
and
THE RECORDER OF LONDON HHJ HILLIARD QC
(SITTING AS A JUDGE OF THE CACD 
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Between :

	RE TIMES NEWSPAPERS LTD

- and -

R	Applicant/
Appellant

Respondent	
	- and -		
	EHSAN ABDULAZIZ	Defendant	

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Mark Heywood QC (instructed by the Crown Prosecution Service) for the Respondent
Anthony Hudson QC and Ben Silverstone(instructed by Times Newspapers Limited) for the Applicant/Appellant

Hearing date: 26 April, 2016
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Approved Judgment
Lord Justice Gross : 
INTRODUCTION
1.	The Applicant (“TNL”) applies for permission to appeal under s.159 (1)(a) and (c) of the Criminal Justice Act 1988 (“s.159”) and Crim PR 40 against the order made by HHJ Griffith, sitting at Southwark Crown Court, on 15th December, 2015 (“the 15th December order”).
2.	 S.159 provides as follows:
“ (1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against – 
(a)  an order under section …11 of the Contempt of Court Act 1981 made in relation to a trial on indictment;
…..
(c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings. ”
3.	In a nutshell, Mr. Abdulaziz (“the Defendant”) stood trial in early December 2015 on a single count of rape.   On the 7th December, the Crown served on the court officer a notice that it would apply for a private hearing in respect of “all those parts of the trial in which any evidence is given by or on behalf of the defendant, or any reference is made to the same in any manner, concerning any matter of a kind to be identified to the court.”  The Crown had only become aware of the need (or perceived need) for this application on the same day.
4.	On the 8th December, the Crown proceeded with the application, thus foreshadowed.  It began in open court and then, in accordance with CPR 6.6, proceeded in private. Both TNL and the Defendant’s representatives were excluded from this hearing.  
5.	In the event, the Judge made an order on the 8th December (“the 8th December order”), which provided as follows:
“ It is ordered pursuant to CPR 2015 Rule 6, that:-
1.  The time for this application is abridged.
2.  Any evidence to be given by or for the Defendant concerning his character, as opposed to the events the subject of the indictment, should be given in private. 
3. Any further reference to such evidence should be made in private.
4. Any reporting of evidence given by or for the Defendant should be delayed by a period of 10 minutes.”
6.	No challenge is made to the 8th December order.
7.	The controversy now before the Court arose as follows.  On the 8th December, the Judge on resuming the public hearing was asked by a reporter present in Court on what grounds the 8th December order had been made. The Judge gave a brief explanation in open Court.  It is the words used by the Judge in doing so (“the wording”) which have given rise to concerns. 
8.	The Judge, in effect, repeated the wording in an e-mail sent without any covering restriction to TNL on the 9th December (“the 9th December e-mail”).  
9.	The upshot was an application by the Crown on the 15th December for an order under s.11 of the Contempt of Court Act 1981 (“the 1981 Act”) that there be no reporting of the wording. TNL opposed the application.   The Crown applied for part of its application to be heard in the absence of TNL.  For its part, TNL submitted that, in order to be afforded a fair hearing, it should not be refused access to any material relied on by the Crown and should not be excluded from the hearing.  By way of an alternative, counsel for TNL offered an undertaking not to disclose specified information to any person other than his instructing solicitor at TNL.  In the further alternative, TNL submitted that the Crown should communicate the gist of the material relied on by the Crown to TNL’s representatives and TNL should be permitted to make submissions on it. 
10.	S. 11 of the 1981 Act provides as follows:
“ In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”
11.	The Judge decided to hear part of the Crown’s application in the absence of TNL.  No summary of that part of the hearing, or the evidence heard, was provided to TNL.
12.	At the end of the hearing, the Judge indicated that he would grant the order sought by the Crown (“the 15th December order”).  The 15th December order was made under s.11 of the 1981 Act and stated that there should be no reporting of the wording, extending both to the hearing in Court on the 8th December and the 9th December e-mail. 
13.	Later on the 15th December, the Judge provided his reasons in the form of a written Ruling (“the 15th December Ruling”), to which we shall later return.
14.	It appears that part of the 15th December proceedings were conducted in open court.  Neither the 15th December order nor the 15th December Ruling carried any covering restriction.  Both used the wording.   
15.	The Defendant gave evidence on the 10th and 11th December; in the event, he was later acquitted by the jury, on the 15th December. 
16.	For completeness, in the interim – between the 10th December by when there was discussion of the Crown seeking an order under s.11 of the 1981 Act and the 15th December when that application was heard - there had been no reporting of the wording. Some consideration was given to an order under s.4(2) of the 1981 Act but, as we understand it, no such order was made or was necessary as TNL had stated in open Court, in the absence of the jury, that it had no intention of publishing the wording until a verdict had been returned.  As is clear from the transcripts, the Judge’s concern at this time was that the jury should not know of and should not speculate as to why a small part of the trial would be heard in camera.  
THE HEARING BEFORE THIS COURT
17.	We turn to the hearing before this Court. Apart from a very brief ex parte hearing where only the Crown was represented, we proceeded in open Court but subject to an order made under s.4(2) of the 1981 Act.  The Defendant had been notified of the hearing but took no part and was not represented. 
18.	We were satisfied that the matter came within s.159(1)(c) and we granted TNL leave to appeal.  In accordance with well-established law, we did not treat the hearing as a review of the decision of the Judge but have instead come to an independent conclusion on the material placed before us:  see, In re Guardian News and Media Ltd and Others [2014] EWCA Crim 1861; [2015] 1 Cr App R 4 (“Incedal I”), at [3], together with the authority there cited.
19.	We were most grateful to Mr Hudson QC and Mr Silverstone, for TNL and to Mr Heywood QC, for the Crown, for their assistance.
20.	As it seems to us, the issues fall conveniently under three headings:
i)	Was it necessary to depart from the principle of open justice in respect of the wording?     If the answer is no, that is an end of the matter.  (“Issue I: Necessity”)
ii)	If the answer to Issue I is yes, does the court have jurisdiction to restrain publication of the wording under s.11 of the 1981 Act?  (“Issue II: Jurisdiction”)
iii)	What procedure should have been adopted in hearing the application on 15th December?  Specifically, should the Crown have been permitted to rely on information and/or evidence in support of its application which was not provided (even in summary form) to TNL or its legal representatives?  (“Issue III: Procedure”)
21.	Before turning to these Issues, it is right to record that they have helpfully been narrowed through the commendable realism and good sense, if we may say so, of both counsel. Thus:
i)	The argument has focused on the wording as used in open Court on the 8th December.   No separate points are taken on the 9th December e-mail, the 15th December order, the 15th December Ruling or the appearance of the wording in the Crown’s written note in support of its application of the 7th December, a copy of which was sent to TNL in February 2016.   Those other instances when the wording was used in “open” documents are, however, relied upon by TNL to show a consistent picture and in support of its case that s.11 of the 1981 Act could not be invoked to withhold publication.  
ii)	With regard to the sequence of events in open Court on the 8th December, the parties were content to proceed as follows:  (1) there had been a decision by the Judge that (as later recorded in the 8th December order) evidence concerning the Defendant’s character would be heard in camera;  (2) the indication of that decision was followed by the exchange between the reporter and the Judge during which the wording was used.
ISSUE I:  NECESSITY
22.	We start with well-established law, as to be expected, not in dispute before us. For present purposes and shortly stated, open justice is a fundamental principle of the common law; the test for departure is one of necessity – nothing less will do; that test may be satisfied to avoid frustrating or rendering impracticable the administration of justice:  see, Incedal I, at [10] et seq; In re Guardian News and Media Ltd. [2016] EWCA Crim 11; [2016] 1 WLR 1767 (“Incedal II”), at [47] – [50]; see too, the helpful case note by Prof. Hungerford-Welch, at [2016] Crim LR 433. 
23.	Provided only that there is jurisdiction to withhold the wording from the public, then we are satisfied that it is necessary to do so. 
i)	The 8th December order, against which there is no appeal, provided for an in camera hearing as and to the carefully limited extent, there set out. 
ii)	As we said in open court, following the brief ex parte hearing before us, we were satisfied that the material shown to the Judge was such as to justify his decision to hold that in camera hearing.  Indeed, although we cannot elaborate in an open judgment, the reasons for doing so are compelling and necessitate that departure from the principle of open justice.  
iii)	Although again we cannot elaborate here, put quite simply, publication of the wording would frustrate or undermine the purpose of the 8th December order. The same reasoning that justified the decision to hold the in camera hearing, requires the prohibition of the publication of the wording.  It is therefore necessary, to avoid frustrating or rendering impracticable the administration of justice, for the Court to give directions prohibiting the publication of the wording – provided only that there is jurisdiction to do so.
24.	It follows that our answer to the question underlying Issue I is “yes”.
ISSUE II:  JURISDICTION
25.	(1) The facts: Our starting point is to determine how, as a matter of fact, the wording came to be mentioned in open Court on the 8th December.  As it seems to us and though there are some surprising features, a clear picture can be discerned. 
26.	Somewhat late in the day, on or about 7th December, the Defendant (or his representatives) indicated that he would or might wish to give evidence as to his character.   This was in no sense part of the Crown’s case; the situation was far removed from one where the Crown was anticipating an in camera hearing and preparing its case with that in mind.  The Crown’s application for an in camera hearing came before the Court, fairly rapidly, the next day.   In his observations in open Court on the 8th December and in the 9th December e-mail, it is clear that the Judge was motivated by a desire to assist TNL.
27.	Unfortunately, it is equally plain that the Judge’s use of the wording amounted to a mishap of a serious nature, such that publication of the wording would frustrate or undermine the purpose of the 8th December order. That mistake was perpetuated over the days which followed.   That the Judge had said “too much” was acknowledged by him in the transcript of the 15th December hearing and at paragraphs 5 and 16 of the 15th December Ruling.  
28.	We have some sympathy for the Judge in that, for whatever reason, those representing the Crown did not at once draw the error of the 8th December to his attention and furnish assistance to prevent the other instances where the wording was used without restriction.  Indeed, one of the curiosities of this matter, is that even the 15th December order and the 15th December Ruling contained unrestricted use of the wording.  The delay between the 8th December and the Crown’s application on the 15th December is itself a puzzle – though the apparent lack of urgency is at least in part explained, first, by the fact, as we were told, that the Crown was unaware of the 9th December e-mail for several days; secondly, because there was no threat of publication of the Judge’s reasons for the 8th December order prior to the verdict of the jury (see above).  A still further oddity is the fact that the Judge’s reasons for the 15th December Ruling are, with respect, not as clear as they might have been; here, however, we have no doubt that the explanation lies in a well-intentioned and very proper effort on the part of the Judge to acknowledge his mistake and to salvage what was on any view an unfortunate position.  
29.	All that said and notwithstanding the curiosities, puzzles and apparent lack of urgency, we have no real hesitation in concluding that the use of the wording in open Court on the 8th December was a mistake and that the self-same mistake was repeated in the days which followed, including the 15th December.  With respect to all concerned no or insufficient thought had been given to how the 8th December order was to be explained in open Court.  There are lessons to be learnt in that regard, to which we return later.
30.	(2) The law:  For present purposes, the legal framework can be shortly summarised. 
31.	First, restraining the publication of something said in open Court is rightly and plainly a matter of extreme sensitivity; no such order will be made lightly and without the most careful scrutiny.  As was not in dispute before us, the only power capable of being invoked here is contained in s.11 of the 1981 Act.  For the Crown, therefore, it was s.11 or “bust”.  
32.	Secondly, however, it is clear that the mere fact something has been said in open Court is not conclusive and fatal to any restraint.  There is a jurisdiction to correct mishaps.  In In re Times Newspapers Ltd [2007] ECWA Crim 1925; [2008] 1 WLR 234, a criminal trial was taking place partly in camera; an exchange then took place in open Court which should have occurred in camera.  Giving the judgment of this Court, Lord Phillips of Worth Matravers CJ, said (at [21]) that the order made by the Judge under s.4(2) of the 1981 Act must be quashed; however, he went on to say this:
“22.  It does not follow that there was no way of preventing the mischief that might have been caused by the accidental inclusion of the question and answer in the evidence given in open court when it should have been given in camera.  Mr Nicol submitted that, once the question had been posed and the answer given in open court, the evidence was in the public domain and publication could not be prevented.
23. We do not accept that submission. There is a world of difference between what is said in open court and what is published, and the CCA is concerned with the latter.  The question and answer fell within the category of evidence that the judge had ordered should be withheld from the public by his ruling under section 8(4) of the Official Secrets Act 1920.  It was open to him to make an order under section 11 of the CCA that embraced the question and answer, notwithstanding that the question and answer had, by mistake, been heard in public…..”
33.	Thirdly, the scope of the s.11 jurisdiction is obviously governed by the wording of the section (set out above).  For the Court to have power to give directions prohibiting the publication of a “matter”, the Court must first have (1) allowed the matter to be withheld from the public in proceedings before the Court; and (2) have had power to allow that matter to be thus withheld.  The Court may then give “such directions prohibiting the publication of that …matter…as appear…to be necessary for the purpose for which it was so withheld”; the directions prohibiting publication are thus linked to the purpose for which the matter was withheld in the first place.  “Matter” does not have a fixed meaning; its meaning instead depends on the context and is fact sensitive in any given case.  As will be clear in a moment, the key (though not the only) issue dividing the parties in the present case concerns the meaning of the “matter” here withheld from the public.   
34.	 (3) The law applied to the facts:  For TNL, Mr Hudson contended that the “matter” here which the Judge had allowed to be withheld from the public was the evidence referred to in the 8th December order; the Judge had not, still less deliberately, exercised the power to withhold the wording used as part of his reasons for making the 8th December order from the public.  For the Crown, Mr Heywood submitted that, in context and having regard to the interest sought to be protected, the “matter” which the Judge had allowed and deliberately allowed to be withheld from the public extended to the reasons for the 8th December order, including the wording; the approach advocated by Mr Hudson was too narrow, “sterile” and likely to lead to an unjust result. 
35.	As is apparent, the express terms of the 8th December order deal and deal only with the evidence to be given in camera.  The express terms say nothing as to the reasons for the 8th December order.   However, in our judgment, as a matter of necessary implication, the “matter” allowed to be withheld from the public must cover not only the evidence the subject of the 8th December order but also the reasons for that order - insofar as the publication of those reasons would otherwise have the effect of revealing the nature of the evidence to be withheld from the public.  Were it otherwise, publication of such reasons would frustrate or undermine the purpose of the order.   On this footing, the matter allowed to be withheld from the public must encompass the wording; as we have already concluded, the same reasoning that justified the decision to hold the in camera hearing, requires the prohibition of the publication of the wording. 
36.	By way of amplification:
i)	We readily accept that orders, especially those restraining publication and so derogating from the principle of open justice, must be precise.  Save most exceptionally, we would expect the express terms of any such orders to deal exhaustively with the matter to be withheld from the public.  We are, however, driven to the conclusion reached here, most exceptionally, because of the stark and strict necessity for the implication.   
ii)	There is no doubt that the Judge deliberately allowed a “matter” to be withheld from the public and, in the light of our answer to Issue I, he had the power to do so; s.11 of the 1981 Act is accordingly engaged unlike In re Trinity Mirror plc  [2008] EWCA Crim 50;  [2008] QB 770, at [19].   The scope of the matter allowed to be withheld from the public is determined here both by the express terms of the 8th December order and by way of necessary implication. 
iii)	We have no doubt that the publication of the wording would prejudice the administration of justice.  For the reasons already given, such publication would frustrate or undermine the purpose of the 8th December order.  Further and viewed from a different perspective, it is to be recollected that the Defendant gave evidence on the basis that a part of it should be given in camera; the assurance that he was thus given would be negated if the wording was published.  That cannot be right.
iv)	As already catalogued, the Judge and (it must be said) the Crown failed to focus on the ramifications of the wording being used in open Court. It is unnecessary to belabour that mistake and its perpetuation over the ensuing days.  Given, however, that the wording is encompassed within the matter allowed by the Judge to be withheld from publication, the Court is not powerless to deal with the mischief thus accidentally caused: see, In re Times Newspapers Ltd (supra), at [22] – [23].  As there observed, there is “…a world of difference between what is said in open court and what is published and the CCA is concerned with the latter”. 
37.	Accordingly, we conclude that the Court has jurisdiction to restrain the publication of the wording under s.11 of the 1981 Act and would answer the question underlying Issue II, “yes”.  We are fortified in reaching this conclusion by the consideration that there is, entirely rightly, no challenge to the substance of the 8th December order; however, had our answer to the jurisdiction question been different, then that very substance would have been frustrated or undermined by publication of the wording.    
38.	Before parting with Issue II, we add these observations by way of lessons to be learnt for the future:
i)	First, as the events of this case so clearly demonstrate, when there is a hearing in camera, it is of the first importance to give proper attention to what is thereafter said in open court as to that hearing and any decisions there taken. As provided by CPD 2015, 6B.4(i), the order must specify “…whether or not the making or terms of the order may be reported or whether this itself is prohibited”.    The CPD goes on to state that such a report could “cause the very mischief” which the order was intended to prevent.
ii)	Secondly, applications for in camera hearings and such hearings themselves can give rise to complexity.  In the present case, the matter arose somewhat unexpectedly and it would appear, short of adjourning the trial, had to be dealt with by the Judge dealing with the trial.  The Senior Presiding Judge (“SPJ”) may, however, wish to consider what arrangements could or should be made via Presiding Judges (“PJJ”) and Resident Judges (“RJJ”) with regard to the allocation of such applications, either to RJJ or to Judges specifically designated by the RJ.  This observation is not intended to imply criticism of the Judge in the present case; moreover, we have an open mind as to what, if any, arrangements could or should be made in this regard.  We do, however, think that the matter would benefit from consideration by the SPJ. 
ISSUE III: PROCEDURE
39.	As foreshadowed, TNL here complains that in support of its 15th December application the Crown was permitted to rely on information and/or evidence which had not been provided (even in summary form) to TNL or its legal representatives.  With respect, there is nothing in this point.  As to principle, it is unnecessary to add to the observations in Incedal I at [20] – [30] and Incedal II, at [33] – [35].  Even so, we specifically raised this matter with the Crown at the hearing before us and are satisfied with the answer that, on the facts of the present case and despite further reflection, the Crown could neither accept undertakings nor supply TNL with the “gist” of the information and evidence in question.  We reject this TNL complaint.
OVERALL CONCLUSION
40.	For the reasons given, this appeal must be dismissed.   
41.	Having canvassed this matter with both the Crown’s and TNL’s legal representatives at the time of circulating the draft judgment, we discharge the order made under s.4(2) of the 1981 Act covering the hearing before us.  However, with the agreement of the legal representatives of the Crown and TNL, we make an order under s.11 of the 1981 Act in the following terms:
“There be no publication of any matter tending to identify the terms or nature of ‘the wording’ referred to at [7] of the Open Judgment handed down on 8th July, 2016, such order to remain in effect until further order of this Court. ”