The Court of Appeal has dismissed the claimant’s appeal in the case of PNM v Times Newspapers ([2014] EWCA Civ 1132) holding that, on the basis of the “open justice principle”, information mentioned in open court concerning a person who was arrested but not charged could be reported.
The Court held that there was no basis for restricting press reporting of these court proceedings. The case did not, contrary to some media reports, deal with the question as to whether the press can report the arrests of individuals who have not been charged.
Background
The claimant was one of a number of men arrested in March 2012 in connection with a Thames Valley Police investigation into allegations of child sex grooming and prostitution. The claimant was released on bail and was subsequently notified that he was to be released without charge.
Nine men were charged and a criminal trial took place at the Central Criminal Court between January and May 2013. On 14 May 2013, even of the defendants were convicted of numerous serious sexual offences. An order under section 4(2) of the Contempt of Court Act 1981 was made on the claimant’s application. It prohibited disclosure of details of applications made to the Court by Thames Valley Police (which concerned certain of the claimant’s property). The order was continued on 12 June 2012. The claimant was named in open court on that occasion and was named in the order.
The claimant was not a party or witness at the criminal trial. On 25 January 2013 a further section 4(2) order was made prohibiting publication of any report which referred to evidence which may identify or tend to identify him.
The claimant’s full name was mentioned in open court when a police officer said that a witness had failed to pick him out on an identification parade. He was also mentioned in the course of cross-examination, in speeches and in the summing up,
By an application made on 15 October 2013 against the Times, the Oxford Mail and two journalists, the claimant sought an order to prevent publication of the fact of his arrest on suspicion of committing serious sexual offences against children and associated information because of the fear of the damage such publications may cause to him and his family, including his children.
At the conclusion of the criminal trial the Judge declined to discharge the section 4(2) order until the decision was made as to whether he claimant would be charged. In July 2013 the police notified the claimant that he was not going to be charged. The Times and the Oxford Mail applied to discharge the section 4(2) but, before he had handed down his ruling, the claimant applied to the High Court for an injunction.
The application was heard by Tugendhat J who, in a judgment handed down on 22 October 2013 ([2013] EWHC 3177 (QB)) refused to grant an interim injunction. The claimant appealed.
Judgment
In giving the leading judgment, Sharp LJ pointed that
“The ordinary rule is that the press may report everything that takes place in open court. It is a strong rule both domestically and in European jurisprudence and can only be displaced by unusual or exceptional circumstances … Any application to depart from it must therefore be carefully scrutinised” [21]
The rule derived strength from the “open justice principle” [23]. Reporting of court proceedings “engages the public interest and has an intrinsic value” [24].
She commented that
“There can be no doubt … that the open justice principle was engaged in this case even though the appellant was not himself a party to the criminal trial” [31].
The defendants had made it clear that they intended to publish a fair and accurate report of the trial and nothing more.
Sharp LJ rejected the argument that the claimant’s rights were broadened as a result of the risk that any report of the trial might, even if accurate, “might lead to other stories about him and to members of the public suspecting he is guilty” [33]. Tugendhat J had been entitled to proceed on the basis that members of the public are able to distinguish between suspicion and guilt ([33] to [36]).
The second strand of the claimant’s argument that the public interest considerations deriving from the open justice principle were overridden by the presumption of the innocence. It was said that this argument had particular force
“when seen against the background of a growing recognition that as a matter of public policy, the identity of those arrested or suspected of a crime should not be released to the public save in exceptional and clearly defined circumstances” [37].
Sharp LJ rejected this argument, because the approach to open justice was well settled and most members of the public understand the presumption of innocence. The position had not been altered by the recent decision of the Supreme Court in A v British Broadcasting Corporation [2014] UKSC 25.
In relation to the reporting of the identity of persons who have been arrested, Sharp LJ pointed out that the claimant was not “someone who has simply been arrested”:
“The fact of his arrest and other associated information has been extensively referred to in open court, including in public rulings given at the criminal trial, and the respondents want to report this” [42].
In relation to the children, the Judge had had full regard to effect of the disclosure of the claimant’s identity on the children. He concluded that although there was “some risk” that the children may be subject to very unpleasant behaviour, this did not tip the balance. Sharp LJ held that he was entitled to come to that view.
She concluded that the judge had carried out an evaluative exercise and had not erred in principle. As a result, the appeal was dismissed although the judgment was anonymised and the section 4(2) orders remained in place until the claimant’s application for permission for appeal to the Supreme Court was finally determined.
Comment
This case is a useful reiteration of the principles of open justice and the strong public interest in favour of reporting criminal proceedings which take place in open court. The crucial point was that the claimant had been identified in public court proceedings as having been suspected of serious criminal offences. Although the Court of Appeal accepted that some members of the public might, wrongly, infer guilt from suspicion, it proceeded on the basis that most people understand the presumption of innocence and will not jump to an adverse conclusion when a person is arrested but not charged.
The case has been misreported in some quarters as being about the naming of suspects. There was, for example, a report in the Daily Mail under the headline “Police should name arrested suspects, says judge: Judgment is a boost for freedom of information campaigners” . The article begins by saying “The identity of suspects arrested by the police should be publicised before they are charged, the Court of Appeal has ruled”. This is a remarkable distortion of the judgment which makes no such point.
Sharp LJ did not disagree with recent Guidance to the effect that the names and details of persons arrested should not be released to the press save in clearly identified circumstances but, rather, relied on the fact that the appellant’s name had been mentioned in open court.
It is noteworthy that before the Judge, the defendant newspapers conceded that, “at a time before these matters were mentioned at the trial, the information that the Claimant had been arrested (and other information) was private information which engaged the Claimant’s rights under Art 8” [68] Neither the Judge nor the Court of Appeal said that this concession was wrong. In other words, far from holding that the identity of suspects arrested by the police should be publicised before they are charged the Court of Appeal proceeded on the basis that there should, in ordinary circumstances, be no such publicity.
It will be interesting to see whether the claimant can persuade the Supreme Court to take this case and to reconsider the principles relating to anonymity and open justice. Bearing in mind the consistent direction of travel of the recent open justice cases the prospect seems remote.
Update: On 18 February 2015, the Supreme Court granted the claimant permission to appeal [pdf]. The appeal is likely to be heard towards the end of the year.
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