PNM v Times Newspapers Ltd & Ors [2017] UKSC 49

A man arrested but never charged in connection with the Oxford child sex grooming investigation sought an injunction preventing newspapers from identifying him as a suspect referred to during the open criminal trial. The Supreme Court refused, upholding open justice and press freedom.

Facts

The appellant, Tariq Khuja (formerly anonymised as PNM), was a prominent figure in the Oxford area who was arrested in March 2012 by Thames Valley Police as part of Operation Bullfinch, a long-running investigation into organised child sex grooming. He was arrested because a complainant had alleged abuse by a man sharing his (very common) first name, but she failed to identify him at an identity parade. He was released on bail, later de-arrested without charge, but his case was kept under review.

Nine other men were tried at the Central Criminal Court in 2013 on charges including rape, conspiracy to rape, trafficking and child prostitution; seven were convicted. During the trial, the appellant was referred to by name on several occasions: a complainant described abuse by a man known by his first name only (‘X’), a police officer gave evidence about the identity parade, and in closing speeches both prosecution and defence counsel referred to the appellant by his full name as the person identified as X.

An order under section 4(2) of the Contempt of Court Act 1981 had been made postponing publication of material identifying the appellant. When the police indicated he would be released without charge, The Times and the Oxford Mail applied to lift the order. The appellant then sought an interim injunction in the High Court restraining publication of any information identifying him as a person arrested or suspected in connection with the investigation, relying on misuse of private information and Article 8 ECHR. Tugendhat J refused the injunction; the Court of Appeal upheld that decision.

Issues

The principal issue was whether the court should grant a pre-emptive injunction preventing the newspapers from publishing information identifying the appellant as a person who had been arrested, bailed and de-arrested in connection with the Operation Bullfinch investigation, and as someone referred to during the criminal trial in open court. This required the court to balance the appellant’s Article 8 rights against the Article 10 rights of the press and the principle of open justice.

Arguments

Appellant

The appellant argued that publication would violate his Article 8 right to respect for private and family life, cause severe damage to his reputation, expose him and his family to harassment, and leave him with no means to clear his name since he could not be tried. He contended that A v British Broadcasting Corpn [2015] AC 588 had altered the relevant approach, and that the judge had wrongly applied a presumption derived from Lord Rodger’s observations in In re Guardian News and Media Ltd that the public understands the difference between suspicion and guilt.

Respondents

The newspapers wished to publish articles focusing on open justice issues, the position of non-parties about whom allegations are made in proceedings, and the operation of section 4(2) orders. They contended that identifying the appellant would make the article ‘considerably more engaging and meaningful’ for readers. They relied on the principle of open justice and the press’s right and duty to report fairly and accurately on public criminal proceedings.

Judgment

The Supreme Court (Lord Sumption giving the leading judgment, with Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agreeing) dismissed the appeal by a 5-2 majority. Lord Kerr and Lord Wilson dissented.

The majority reasoning

Lord Sumption emphasised the fundamental principle of open justice, drawing on Scott v Scott [1913] AC 417 and subsequent authority. He distinguished between two aspects of open justice identified by Lord Diplock in Attorney General v Leveller Magazine Ltd [1979] AC 440: the conduct of proceedings in open court, and the reporting of those proceedings to a wider public. The appeal concerned the second aspect, which represents ‘direct press censorship’ if restricted.

The court reviewed the statutory framework of reporting restrictions, observing that Parliament has created a detailed scheme and that, per Lord Steyn in In re S (Identification: Restrictions on Publication) [2005] 1 AC 593, courts should not create further exceptions by analogy save in the most compelling circumstances. The relevant balancing exercise required intense focus on the comparative importance of the specific rights at stake, with no a priori hierarchy.

Lord Sumption rejected the argument that A v BBC had changed the law. He also rejected the submission that Tugendhat J had wrongly applied a legal presumption based on Lord Rodger’s observation in In re Guardian News and Media Ltd; Lord Rodger had merely described the basis on which English law permits identification of those charged.

Key reasons for refusing the injunction were: (1) the appellant could have no reasonable expectation of privacy in matters discussed at a public trial; (2) although Article 8 was engaged through impact on family life, this impact was indirect and incidental, akin to that in In re S; (3) the appellant was essentially seeking to protect reputation, and it would be incoherent to grant an injunction in respect of indirect family-life consequences when no injunction would lie to protect reputation directly in defamation, given the absolute privilege for fair and accurate reports; (4) the sexual abuse of children was a matter of intense legitimate public interest, including the investigative processes and section 4(2) orders themselves; (5) the appellant’s identity was not peripheral to the story.

Lord Sumption concluded by noting that restrictions on reporting open court proceedings are particularly difficult to justify, and that any solution to collateral damage to non-participants may lie in courtroom anonymity measures rather than reporting restrictions.

The dissent

Lord Kerr and Lord Wilson would have allowed the appeal. They considered that Lord Rodger’s statement in In re Guardian News and Media Ltd amounted to a legal presumption that most members of the public understand the difference between suspicion and guilt, that this presumption had no proper evidential foundation, and that Tugendhat J had erred in applying it. They referred to the experience of Christopher Jefferies, the Leveson Report, the Henriques Review, and Canadian authority (BG v The Queen in Right of British Columbia; R v Henry) to demonstrate the reality that arrest is frequently equated with guilt and that those merely suspected risk profound harm to reputation. They considered the balance fell heavily in favour of the appellant’s Article 8 rights.

Implications

The decision strongly reaffirms the principle of open justice and the freedom of the press to publish fair and accurate reports of what takes place at public criminal trials, even where the consequence is serious reputational damage to a non-party who has been named in evidence but never charged. The case confirms that:

• A person referred to in open court generally has no reasonable expectation of privacy in respect of those matters;
• Article 8 may be engaged indirectly through impact on family life, but such indirect impact will rarely be sufficient to outweigh open justice and Article 10 interests where the proceedings concern matters of legitimate public interest;
• The coherence of the law requires that protection unavailable through defamation (because of the absolute privilege for fair and accurate court reports) should not be available through privacy by a different route;
• Courts should not create exceptions to open justice by analogy with statutory exceptions, save in the most compelling cases;
• The appropriate remedy for those concerned about collateral damage from criminal proceedings is more likely to lie in courtroom anonymity measures sought during the trial itself rather than post-trial reporting restrictions.

The decision is significant for journalists, editors, criminal practitioners, and individuals caught up in high-profile investigations. It illustrates the limited scope of pre-emptive injunctive protection for those arrested but never charged, although Lord Sumption expressly noted that post-publication remedies (such as defamation, where available) are unaffected. The strength of the dissent, and Lord Sumption’s own observation that he ‘might have been less sanguine’ about public reactions, demonstrates the continuing sensitivity of the area and the unresolved tension between open justice and reputational protection in the era of mass digital communication.

Verdict: Appeal dismissed. The Supreme Court (by a 5-2 majority) refused to grant an injunction restraining the newspapers from publishing information identifying the appellant as a person arrested and referred to in the Operation Bullfinch criminal proceedings. The anonymity order previously made under section 4(2) of the Contempt of Court Act 1981 was revoked, and the appellant was thereafter to be referred to by his name, Tariq Khuja.

Source: PNM v Times Newspapers Ltd & Ors [2017] UKSC 49