An attempt to prevent the media publishing the name of a barrister to protect her professional reputation after she was fired by a defendant in a criminal case was rejected by a court in Jersey.
The Jersey Evening Post made written and oral submissions on Thursday November 15 arguing against the request, made at the Jersey Court of Appeal in the case of four men, including a former magistrate, who have been convicted of fraud.
Advocate Olaf Blakeley, representing one of the four, John Lewis, applied for the gagging order to protect the professional reputation of the lawyer his client had sacked – Lewis is expected to argue that he should be allowed to appeal against his conviction on a number of grounds, including what he says was the quality of his previous advocate.
That advocate was not named in court – but it is a matter of public record that at his trial Lewis was represented by Advocate Sue Pearmain.
Sir John Nutting QC, a justice of the Jersey Court of Appeal, rejected the application, saying that lawyers should expect criticism from all angles in the course of their work.
Jersey Evening Post deputy news editor Andy Sibcy argued that it was a long-standing principle of both the common law and the Jersey courts that court proceedings should be open to the public other than in exceptional circumstances.
The 15 November hearing was to hear applications from two of the convicted men for the postponement of a hearing before the Jersey Court of Appeal at which all four are to seek leave to appeal against their convictions for fraudulently inducing investments.
Applying for the gagging order, Blakeley told the court: "One must remember that we live in a small island. It is a matter of public record who represented Lewis previously.
"Professional reputation is important, especially in an island of this size. By mere reference to it, it may have the possibility of damaging another advocate's reputation.
"I say it may – it may not – but of course the saying goes there's no smoke without fire."
But Sibcy argued that reputational harm of this kind was akin to embarrassment and that there was therefore no compelling reason to atop media reporting of the matter.
He cited the Police Procedures and Criminal Evidence (Jersey) Law 2003 and the Royal Court's judgment in Jersey Evening Post Ltd v Al Thanie and Four Others (2002 JLR 542), in which the Royal Court held that mere embarrassment was not sufficient reason to stop media reporting of a civil action involving the Qatari royal family.
Sibcy said: "It strikes me that the imposition of reporting restrictions would actually hamper the administration of justice because the perception that the court has acted to protect one of its own could be far more damaging than a report of what has been said today."
Sir John said he was "particularly grateful" to Sibcy for his "cogent and relevant" oral and written submissions.
He went on: "My view is that advocates in Jersey, just as counsel in the mainland jurisdiction, must during the course of their practice develop fairly broad backs in relation to criticism.
"They may receive criticism from the judge or, in the Court of Appeal, from the judges.
"They may receive criticism during the course of any hearing from other counsel, including the prosecution.
"The prosecution by the same token must accept that they may receive criticism from the court or the other advocates in the case. They must expect to be criticised by witnesses who may take exception to questions or their attitudes towards them.
"All these matters will be reported in the press if the press deems them to be of interest or significant to the readers of the newspaper which they publish or the media in which they work."
Sir John said the law was clear and in all the circumstances, the court should not make an order banning publicity.
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