News organisations have won a bid to lift a wide-ranging order made by a judge at the Glasgow Airport terror trial banning the media from publishing anything which had not been shown to the jury.
Mr Justice Mackay made the order, under section 4 (2) of the Contempt of Court Act 1981, at Woolwich Crown Court on Friday last week after expressing concern about footage he had seen the previous evening in a television news bulletin.
The order said: “There is to be no publication in any medium of material of any kind relating to this trial, unless and until it has been put to the jury in court, until after verdicts have been reached.”
When he made the order the judge acknowledged that he did not believe that the material which concerned him had actually caused any prejudice to the trial.
But his concern, he said, was what the media might “have up their sleeve” and use in the future, while the trial was going on.
“To be blunt, this sort of thing has been going on and it is all a process of drip, drip, drip,” he said, adding that “the bigger part of me is saying it is time for a bit of a blunderbuss to come out”.
But Mr Justice Mackay lifted the order yesterday after barrister Guy Vassall-Adams, representing ITN, the BBC, Times Newspapers, Guardian News and Media and Mirror Group Newspapers, pointed out that the court did not have the jurisdiction to make it.
Vassall-Adams said the jurisdiction under section 4 (2) of the Contempt of Court Act was strictly limited to postponing the publication of fair and accurate reports of the proceedings, in order to prevent prejudice to those or other proceedings.
But it did not give the court any power to make an order postponing the reporting of any other material – for example, material which was not being put as evidence at the trial, or material which had not yet been put to the jury as evidence.
Reporting which could not be counted as coverage of the actual proceedings in court could not be covered by section 4 (2) but was covered by the strict liability rule under section 2 (2) of the Contempt of Court Act, which makes it a contempt to publish material which creates a substantial risk of serious prejudice to the administration of justice.
The correct way of dealing with that sort of material was to refer the matter to the Attorney General to consider whether to bring a prosecution.
“The court should not seek to pre-empt the media’s reporting of the case by taking matters into its own hands and making an order in advance of such publication,” Vassall-Adams said.
“Responsibility for complying with the law of contempt rests with the media and the media should be trusted to discharge that responsibility.”
He said that in the Dhiren Barot case (R v B  EWCA Crim 2692) the Court of Appeal had pointed out: “The responsibility for avoiding the publication of material which may prejudice the outcome of a trial rests fairly and squarely on those responsible for the publication.
“In our view, newspaper and broadcasting authorities should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice.
“They have access to the best legal advice; they have their own personal judgments to make. The risk of being in contempt of court for damaging the interests of justice is not one which any responsible editor would wish to take. In itself that is an important safeguard, and it should not be overlooked simply because there are occasions when there is widespread and ill-judged publicity in some parts of the media.”