Section 4(2) Contempt Act postponement orders must be tightly targeted and cannot suppress already-public material

1) Introduction

In The Secretary of State for the Home Department v Ammori, R (on the application of) [2026] EWCA Civ 659, the Court of Appeal (Civil Division) (Lord Justice Edis giving the judgment of the court, with the Lady Chief Justice, the Master of the Rolls, Lord Justice Lewis and Lady Justice Whipple sitting) determined an application to postpone reporting under section 4(2) of the Contempt of Court Act 1981.

The underlying judicial review concerns the Home Secretary’s proscription decision relating to “Palestine Action” (as discussed in the Divisional Court’s judgment [2026] EWHC 292 (Admin)). Parallel to that public law litigation, criminal proceedings were (and remain) ongoing arising from incidents in Bristol (“Operation Recomply”) and Kent (“Operation Seoul”). The Bristol prosecutions were being managed at Woolwich Crown Court, where reporting restrictions had been imposed by the trial judge under section 4(2) and by statute in relation to preparatory hearings.

The application before the Court of Appeal was advanced in substance by the CPS (through counsel) seeking to extend—over the appeal proceedings and the Court of Appeal’s judgment—postponement restrictions similar to (and in places wider than) those already made below by Chamberlain J in the judicial review. Media interests (notably the Press Association, supported by the BBC) opposed the breadth of the proposed restrictions.

The core issues were (i) whether reporting the open judicial review proceedings would create a substantial risk of prejudice to the administration of justice in the ongoing and future criminal trials, and (ii) if so, whether a section 4(2) postponement order was necessary, effective, and proportionate.

2) Summary of the judgment

  • The Court of Appeal refused to make the sought section 4(2) order postponing reporting of aspects of the appeal and judgment.
  • It held that the CPS was, in effect, seeking restrictions broader than those the criminal trial judge at Woolwich had found necessary—an “alarm bell” in a context where derogations from open justice are exceptional.
  • It discharged the relevant parts of Chamberlain J’s earlier, broadly framed postponement order insofar as it bore on the reporting of the appeal proceedings and judgment.
  • It emphasised that if specific prejudicial material not aired before the jury existed, the correct approach was a focused application identifying the material, and in many instances the proper forum would be the Crown Court.
  • It held that postponing reporting of the Home Secretary’s conclusion that incidents met the statutory definition of “terrorism” could not eliminate any material prejudice, because the relevant facts (including proscription and its legal challenge) were already in the public domain.

3) Analysis

A) Precedents cited

R v Sarker [2018] EWCA Crim 1341

The court treated R v Sarker as the controlling modern summary of principle on section 4(2) postponement orders, adopting its structured test:

  1. Is there a substantial risk of prejudice to the administration of justice if reporting occurs?
  2. Would a section 4(2) order eliminate that risk, and if so, is it necessary (i.e., are there less restrictive means)?
  3. Even if necessary, is the remaining risk tolerable as the “lesser of two evils” when balancing fair trial rights with open justice and freedom of expression?

The Court of Appeal’s refusal largely turned on steps (1) and (2): the proposed restrictions could not sensibly be shown to address a substantial risk in circumstances where the key matters were already widely known and the Divisional Court had published its judgment without such restrictions.

Montgomery v HM Advocate [2003] 1 AC 641

The court relied on Lord Hope’s account of the trial-process safeguards against prejudicial publicity: the discipline of hearing evidence in court, judicial directions, and the foundational assumption that jurors follow instructions. This underpinned the court’s conclusion that widely known facts (such as the existence of proscription and the existence of judicial review proceedings about it) are not readily neutralised by reporting bans, and that fairness is ordinarily protected by robust trial management (including directions that proscription is irrelevant to the determination of the offences).

Ex p. Central Television Plc (1991) 92 Cr. App. R. 154; [1991] 1 W.L.R. 4

Cited within Sarker, this authority supported the court’s insistence that a postponement order is not “necessary” if the risk can be addressed by less restrictive means. In this case, the court pointed to tailored applications in the correct forum (especially the criminal court) and to ordinary trial directions, rather than blanket postponement of reporting about the public law litigation.

Ex p. Telegraph Plc (1998) 94 Cr. App. R. 91; [1993] 1 W.L.R. 980

Also cited via Sarker, this authority reflects the final-stage balancing exercise. The Court of Appeal’s approach indicates a high threshold for restricting reporting of open proceedings, particularly where the proposed order would operate broadly and where the alleged prejudice is already embedded in public knowledge.

B) Legal reasoning

(i) Open justice and the “exceptional” nature of section 4(2) orders

The court began from the principle that reporting restriction orders are a derogation from open justice and must be “exceptional”, “strictly necessary”, and a “last resort” (language taken from R v Sarker). This set the tone: the burden lay on the applicant to justify concrete necessity.

(ii) The mismatch between what the criminal court restricted and what the CPS sought here

A notable feature was the court’s concern that the CPS sought to postpone publication of matters “which the trial judge in the criminal proceedings at Woolwich has not sought to prevent”. Given the trial judge’s “conspicuous care” in managing reporting restrictions, the Court of Appeal treated the broader civil-court restriction as inherently suspect unless justified by clearly identified prejudice.

(iii) The need for proceedings-specific, not topic-wide, restrictions

The proposed order (and Chamberlain J’s existing order) was framed at a high level of generality—covering “any information” about planning, conduct, or police investigation. The Court of Appeal held that any postponement order should relate to what is said in these proceedings. If the concern is prejudicial material outside this appeal (e.g., materials deployed or served in the criminal case), then the correct place to seek protection is typically the Crown Court.

The court also highlighted a practical defect: broad restrictions of this kind are difficult to comply with for third parties (such as media) who lack “comprehensive knowledge” of what has been in evidence before a jury.

(iv) “Already in the public domain” defeats effectiveness and necessity

The court’s most decisive reasoning was that the key facts the CPS sought to suppress—especially the Home Secretary’s conclusion that relevant incidents met the definition of “terrorism” and the fact of proscription—were already widely known from public statements and the published Divisional Court judgment. Because section 4(2) postponement must be shown to eliminate the substantial risk, an order that cannot realistically change the information environment fails the Sarker test.

(v) Targeted applications as the proper safeguard

The court left open the possibility of a focussed application if a party could identify a specific prejudicial fact (not in evidence before a jury) that nevertheless appeared in the public law judgments. It required any such application to be made within 48 hours of receipt of the judgment. This reflects a preference for precision over blanket restriction.

C) Impact

  • Higher discipline in drafting civil-court section 4(2) orders: The judgment discourages broad, topic-based reporting prohibitions in civil proceedings where parallel criminal trials exist, especially when those restrictions would be hard for the press to navigate.
  • Reinforcement of forum allocation: Where the claimed prejudice relates to the criminal process, the judgment signals that the Crown Court is usually the appropriate venue to calibrate restrictions, because it is best placed to assess what a jury has heard and what remains sensitive for future trials.
  • Public-domain realism: Courts are unlikely to postpone reporting of matters that are already widely disseminated through parliamentary statements, published judgments, and general public knowledge; section 4(2) is not a mechanism for reversing publicity already achieved.
  • Practical protection through trial directions: The court’s reliance on Montgomery v HM Advocate underscores judicial directions (including directions that proscription is irrelevant) as the primary safeguard rather than restraining the reporting of open justice proceedings.

4) Complex concepts simplified

Section 4(2) Contempt of Court Act 1981 (postponement of reporting)
A power to temporarily delay reporting of court proceedings (not permanently ban it) where that delay is necessary to avoid a substantial risk of prejudice to the administration of justice (typically, fair trial rights).
Open justice
The principle that court proceedings and judgments should generally be public and reportable. Restrictions are exceptional because public scrutiny is a core safeguard of legitimacy and accountability.
“Substantial risk of prejudice”
Not a speculative or minor possibility. The applicant must show a real, significant risk that reporting would interfere with justice—commonly by influencing a jury in a current or future trial.
“Necessary” and “less restrictive means”
Even if reporting creates risk, a postponement order is only justified if the risk cannot adequately be addressed in other ways—such as careful trial directions, jury management, or narrower restrictions focused on particular pieces of information.
Preparatory hearing reporting restrictions (Criminal Procedure and Investigations Act 1996)
A statutory scheme limiting reporting of certain pre-trial criminal hearings (and related rulings). These operate independently of section 4(2) and reflect Parliament’s view of what ordinarily requires protection at that stage.

5) Conclusion

[2026] EWCA Civ 659 reaffirms that section 4(2) postponement orders are exceptional and must be tightly tailored to demonstrable necessity. Where the information said to be prejudicial is already publicly available—through parliamentary statements and published judgments—a postponement order will often be ineffective and therefore unjustified. If truly prejudicial, non-public material needs protection, the application should identify it precisely and, in most cases, be made to the criminal court best placed to assess its impact on juries in ongoing or future trials.