England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice McCombe)

		Royal Courts of Justice Strand London WC2 Tuesday 12th March, 2002

1. LORD JUSTICE PETER GIBSON: This is an application by Nicholas van Hoogstraten, the appellant in the appeal which this court is about to hear. It is an appeal from the order of McCombe J, allowing an appeal by the respondent, Palmeira Square Nos 2-6 Ltd from that part of the order of Her Honour Judge Coates in the Brighton County Court whereby she had refused the respondent's application that Mr van Hoogstraten pay the costs of the respondent in proceedings to which Mr van Hoogstraten was not a party.
2. Although deciding in favour of Mr van Hoogstraten on this and a further claim by the respondent alleging conspiracy between him and others, Judge Coates in her judgment made comments highly critical of Mr van Hoogstraten. In allowing the appeal, McCombe J repeated those criticisms and made others. Mr van Hoogstraten is due to stand trial at the Old Bailey on 9th April of this year for murder and conspiracy to murder. That trial is estimated to last 6-8 weeks.
3. The application to us today was in two parts. The first was that the hearing of the application be in private. This court ordered that until this judgment, which is being given in open court. The second was an order be made under section 4(2) of the Contempt of Court Act 1981 to postpone the publication of any report of the proceedings before this court until after the verdict in the criminal trial. Section 4 provides, so far as material:

"(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.

(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."

4. Mr van Hoogstraten's application is supported by the Crown Prosecution Service.
5. Mr van Hoogstraten has attracted considerable press interest in recent years and it is likely that, without such an order under section 4(2), reports of these proceedings would appear in the press. The respondent does not oppose an order being made under section 4(2), but asks that it be limited so as to restrict publication to reports only of submissions or evidence before this court and the judgments of this court which refer to Mr van Hoogstraten's character or any unlawful action by him in the past, including any threats made by him to any person on any occasion. The respondent says that it and the tenants, whom it represents, have a strong interest in as full a reporting of the litigation as is possible because of Mr van Hoogstraten's behaviour during this litigation. That behaviour is said to have been calculated to intimidate the tenants.
6. Mr Campbell, for the respondent, says that his clients would be better protected if publicity were given to the proceedings.
7. This court must take account of the interests of the respondent and the tenants, though, for my part, I find it difficult to see that any real protection would be given to the tenants if Mr van Hoogstraten is (as is alleged) a person who might exact retribution against tenants who act in a way contrary to his interests.
8. The court must also take account of the important interests of the media in reporting court cases and in giving the wider public fair and accurate information about the administration of justice. Article 10 of the European Convention on Human Rights relating to freedom of expression protects the media's right. However, no less important is the right of Mr van Hoogstraten to a fair trial, that right being guaranteed by Article 6 of the Convention.
9. There is an obvious tension between the rival interests. In R v Sherwood, ex p The Telegraph Group [2001] EWCA Crim 1075, Longmore LJ, giving the decision of the Court of Appeal (Criminal Division) on 3rd May 2001, suggested that three questions should be addressed on applications such as this. I propose to follow that suggestion.

(1) Would reporting give rise to a "not insubstantial" risk of prejudice to the administration of justice in the relevant proceedings? The relevant proceedings in this case are, of course, the criminal proceedings.

10. Evidence has been put before us by the solicitors acting for Mr van Hoogstraten in the criminal trial and in the appeal before us respectively suggesting that it would. In the light of that evidence, the first question must, in my judgment, be answered in the affirmative. A juror in the criminal trial who read or heard, as a result of a report of the proceedings before us, something critical of Mr van Hoogstraten could be affected.

(2) Would a section 4(2) order eliminate that risk; and, if so, could the risk be overcome by some less restrictive means?

11. The answer to the first part of the question is again, in my judgment, plainly in the affirmative. Despite the respondent's and the tenants' understandable concerns and their natural wish that the restriction on reporting should be as limited as possible, I do not think it would be practical to impose the sort of restriction which Mr Campbell has suggested. That could give rise to problems as to whether or not a publication offended the terms of the order. Given that we are to make an order the breach of which would be a contempt of court, I would be loath to make any order which gives rise to any possibility of uncertainty as to its scope. I do not think that the risk can satisfactorily be overcome by any means other than making the order requested.

(3) Is the order necessary and is the degree of risk contemplated tolerable, in the sense of being "the lesser of two evils"?

12. It seems to me clear that the right of Mr van Hoogstraten to a fair trial, particularly having regard to the gravity of the charges made against him, should weigh heavier in the scales than the interests of the respondent and the tenants and the interests of the media in reporting the proceedings and the interests of the public to know about these proceedings. The order proposed is not one which will prevent publication forever. It is only for a comparatively short period, probably about three months.
13. Accordingly, I would make the order requested by Mr van Hoogstraten.
14. LORD JUSTICE ALDOUS: I agree.
15. LORD JUSTICE TUCKEY: I also agree.
ORDER: Application for an order under section 4(2) of the Contempt of Court Act 1981 to postpone the reporting of these proceedings until the conclusion of the criminal trial granted. (Order not part of approved judgment)