In a judgment handed down today ([2017] UKSC 49) the UK Supreme Court, by a majority of 5:2, dismissed the appeal of the claimant from the refusal of Tugendhat J and the Court of Appeal to grant an injunction to prevent his name being disclosed in connection with a criminal investigation.
The appellant was named and the case name is now Khuja (formerly known as PNM) v Times Newspapers.
The case arose out of the trial of nine men on charges involving organised child sex grooming and child prostitution in the Oxford area. Seven of the men were convicted. The appellant was also arrested, but subsequently de-arrested.
After the police released the appellant from arrest without charge, the newspapers successfully applied to lift an order preventing his identification on the ground that there were now no “pending or imminent” proceedings against the appellant that might be prejudiced by publication. The appellant sought to maintain the injunction to restrain publication.
The majority (Lord Neuberger, Lady Hale and Lords Sumption, Clarke and Reed) noted that the appellant was seeking to prohibit the reporting of matters discussed at public trial. These were not matters about which he can have had any reasonable expectation of privacy. The impact on the appellant’s family life is indirect and incidental: neither he nor his family participated in any capacity at trial, and nothing that was said at trial related to his family.
It would be incoherent for the law to refuse an injunction to prevent damage to the appellant’s reputation directly, while granting it to prevent the collateral impact on his family life in the same circumstances. The public interest in allowing the press reporting of court proceedings extends to the appellant’s identity. The policy which permits media reporting on judicial proceedings depends on (i) the right of the public to be informed about a significant public act of the state, and (ii) the law’s recognition that the way in which the story is presented is a matter of editorial judgment. The appellant’s identity was not an irrelevant feature of this particular story.
The summary given on hand down (given by Lord Sumption) is here:
Lords Wilson and Kerr, dissenting, took view that Lord Rodger in In re Guardian News and Media Ltd was stating a legal presumption that courts should act on the basis that most people believe that someone charged with an offence is innocent until proven guilty, but that he had offered no evidence or authority to support such a presumption. They concluded that there was no basis for the presumption and, accordingly, the judge erred in dismissing the appellant’s application on that basis.
There is a Press Summary from the Court. The hearing can be seen on the Supreme Court Website (17 Jan 2017 morning session) (17 Jan 2017 afternoon session) (18 Jan 2017 morning session).
It is well worth reading the dissenting judgment in full. In particular:
49. Plainly there is increasing concern, judicial and extra-judicial, about the effect upon an innocent person’s reputation of publication of the fact of his arrest. In the second volume of the report of his “Inquiry into the Culture, Practices and Ethics of the Press” dated 29 November 2012, HC 780-11, Leveson LJ referred at para 3.25 to the case of Mr Christopher Jefferies, addressed in Attorney General v MGN Ltd [2011] EWHC 2074 (Admin); [2012] 1 WLR 2408. Mr Jefferies was exposed as having been arrested on suspicion of murder. He was later demonstrated to have been innocent of it but meanwhile he had been subjected to a protracted campaign of vilification in the press, which had led him to leave his home and to change his appearance. Although in that case the press had committed contempt of court and had published actionable libels about Mr Jefferies, the significance of the case for present purposes lies in the ease with which arrest may generally be associated with guilt. In the event Leveson LJ recommended at para 2.39 that, save in exceptional and clearly defined circumstances, the police should not release the names or identifying details of those who are arrested or suspected of a crime.
Their lordships accepted the proposition: “If our society takes seriously the proposition that a person in Mr X’s position is presumed innocent until proven guilty, it seems to me that the deleterious effects, both on his privacy interests and on the administration of justice, of the publication of his name do outweigh the public interest in knowing that fact.”
Surely there is a need for section 40 to be in force so that any such person has a cost effective remedy should the press indulge in unreasonable comment or worse.