A recent decision of the Crown Court at Cardiff provides guidance to journalists and media organisations about whether witnesses involved in ongoing trials can be interviewed, and when. It is also indicative of how courts are likely to resolve the balancing act between the interests of justice on one hand and the right to freedom of expression, enshrined in the Human Rights Act, on the other.
R v Shillibier re HTV  All ER (D) 183 (Oct) concerned criminal proceedings in which the defendant was standing trial for murder. HTV was making a documentary about the police investigation of the case and informed the court that it intended to interview at least one of the witnesses who was giving evidence at the trial. The witness had already given evidence for the Crown but the prosecution had not yet closed its case. HTV intended to broadcast the programme once the jury had returned its verdict.
The Crown Court was asked by counsel for both the Crown and the defendant to make an order preventing HTV and other organs of the press, radio or television from contacting any witness who was likely to give evidence for the prosecution. An order was made to this effect. HTV applied to discharge the order.
The Crown Court therefore had to consider a number of issues including whether it had jurisdiction to impose an injunction on the media to restrain an anticipated contempt and, if so, whether it was necessary and proportionate in this case to so restrain the media.
The Crown Court decided that it did have the necessary jurisdiction to restrain the media from committing a threatened contempt. It then had to decide what sort of injunction was necessary and proportionate in the circumstances so as to avoid causing serious prejudice to the trial, bearing in mind the conflicting need to safeguard the media’s right to freedom of expression.
The court decided that it was necessary to restrain the media from approaching witnesses even once those witnesses had finished giving their evidence for the prosecution as it was still possible they might have to be recalled. Such risk would only exist while the prosecution was still presenting its case. An injunction was therefore only necessary until the Crown commenced its closing speech.
Diane Hamer is a lawyer in the computers, communication and media unit of Lovells