Appeal by the BBC against a reporting restriction order in the trial of R v Sarker, allowed


Re: Regina v Sarker & Anor [2018] EWCA Crim 1341

The Court of Appeal has allowed an appeal by the BBC against a reporting restriction order in the trial of R v Sarker. The judgment, given by the Lord Chief Justice, contains important guidance on the proper approach to applications for restrictions on reporting in criminal proceedings, specifically in relation to online articles, and a clear restatement of the significance of open justice principles in such applications.

The defendant was tried at Worcester Crown Court on a charge of fraud, arising out of the allegation that he had dishonestly exaggerated his professional experience in order to obtain an appointment as a consultant surgeon at the Alexandra Hospital in Redditch. After his appointment, serious concerns were raised about the defendant’s competence which resulted in various investigations that were the subject of media reporting.

Those investigations did not form part of the evidence before the jury. At trial, the Judge ordered that there should be no reports of the trial until verdict. The basis for the order was the Judge’s concern that jurors would be exposed to online reports concerning the investigations into the defendant, for instance in links contained in reports of the proceedings, and that prejudice would thereby ensue.

The Court of Appeal allowed the BBC’s appeal against this order, holding that fair and accurate contemporaneous reporting of the trial would not have given rise to any risk of prejudice. There was no reason to assume that media reports would contain links to other articles about the defendant, and in any event such a risk could not properly justify an order restricting reports of the trial. It was important that judges should take a structured approach to reporting restriction applications, that they give proper weight to open justice principles. They should also recognise that juries can be expected to follow the court direction to give their verdict solely on the evidence given at trial and that the media can be expected to act responsibly in its reporting of criminal proceedings.

Ben Silverstone was involved in this case.