Privacy and the end of innocence: An alternative perspective on Khuja (formerly PNM) v Times Newspapers – Robert Craig

This post follows Paul Wragg’s piece on this blog discussing the recent Supreme Court decision determining that the applicant had no right to anonymity after being named in open court by a witness in a high profile criminal case in Oxford.

Mr Khuja was neither charged nor prosecuted in respect of any relevant offence. Wragg’s post is here. A summary of the judgment is available here.

For Wragg, and the Supreme Court majority, there are a number of arguments justifying the naming of Mr Khuja, although Wragg’s primary focus is on the first issue listed below. After some preliminary discussion, this post will address each in turn.

• The press are not a public body under section 6 of the Human Rights Act.
• Free speech
• Open Justice

Introduction

Mr Tariq Khuja was arrested following a report to the police by an under-age complainant who said that she had been repeatedly raped by someone whose first name was ‘Tariq’, which is a very common first name. The complainant gave a detailed and comprehensive description of her assailant but when an identity parade was organised she not only did not pick out Mr Khuja, she positively claimed that her assailant was not one of the 12 men in the parade. It is worth pausing to consider the crucial importance of this point.

The law of evidence is rightly chary of ‘fleeting glimpse’ identifications but this case is arguably at the opposite end of the spectrum. This complainant had multiple opportunities to see her assailant. It is grim to focus on the facts, but she had seen him walk and talk, and seen him dressed and undressed. She knew his gait, his build and his colouring. She had seen at close quarters, repeatedly, his hairline, his chin, his nose and his eyes.

Whilst other factors are clearly implicated in the ability of a complainant to identify her assailant in a crime such as this, the identity parade must make us face the strong likelihood that Mr Khuja is dealing with the dreadful scenario of being trapped in the unforgiving maw of the legal system when he is completely, factually, innocent. In the eyes of the law, of course, the absence of charge (never mind prosecution or conviction) means that he is also, as it happens, entirely legally innocent – which ought to mean something.

Torching an innocent man’s reputation

Once Mr Khuja’s innocence is properly acknowledged, the entire complexion of this case changes, as his privacy rights are clearly engaged.  An objective observer of the British legal system would regard it as a matter of serious and deep concern if an innocent man’s livelihood and standing amongst his family, friends and community could be destroyed by the way in which the system operated. There would need to be outstanding arguments of principle justifying such an outcome.

The prospects for Mr Khuja potentially look quite bleak. Business contacts may fade quietly away. He may have to deal with his children coming home in tears because of playground insults. Friends may drift off inexplicably, leaving him wondering why. His marriage may be put under serious strain. If he is at some point not married, who will then date him in the era of Google? In short, Mr Khuja may face incredible and totally unmerited social and relational hardship for the rest of his life, for something he did not do.

Section 6 of the Human Rights Act and the right to privacy

Wragg endorses the majority judgment and focuses on the minority view, claiming that a distinction should be drawn between the state’s obligation under section 6 of the Human Rights Act to comply with Convention rights and the lack of any such obligation on the part of the press. This is, with respect, a misplaced argument. An injunction was sought in a court to protect this man’s privacy. The administration of the legal system is quintessentially under the control of the courts. Wide powers are available to enforce that control. Section 6(3) clearly states that the courts are a public body.

It is therefore the responsibility of the courts to control every aspect of the legal system as it relates to the privacy of Mr Khuja. If the arguments of the minority had been accepted by the other judges, the grant of an injunction to maintain the privacy of Mr Khuja would have been clearly mandated and required as part of the control of the administration of justice.

Free speech

The next issue to address is the claim that free speech requires the newspapers to be able to report his name. This is distinct from open justice addressed in the next section. Free speech forms one of the key canons of liberal ideology, but is not exclusive to it, of course. The essence of liberalism itself, originally espoused by JS Mill, is the focus on the individual against powerful groups, particularly the State. The tenet of individualism runs through the political philosophy of Kant, Hobbes, Locke, all the way through to Nozick and beyond. Free speech is the inalienable right for individuals to exchange ideas, challenge authority and argue for unpopular causes.

This judgment subverts, nay inverts, the most basic axiom of individualistic liberalism. An individual is here being sacrificed at the altar of unaccountable, all-powerful media corporations who have hollowed out the principle of free speech and poured their power into the vacuum left by empty dogma.

It is ironic that Mill’s defence of the ‘Liberty of Thought and Discussion’ was explicitly predicated on the power of free speech to mitigate the enfeebling of doctrines over time that are not challenged in discourse. Thus, free speech is at the heart of the Western democratic project and dissent from the principle of free speech is not only virtually non-existent, it is treated like heresy. This case raises serious questions about the meaning of our hallowed free speech dogma. Any system that inflicts this kind of damage on an innocent man bears the burden of clear justification. That burden is some distance from being discharged.

Free speech has thus been hijacked by powerful media interests and recent years have demonstrated that modern politicians must bend their knee. Naming this man is not an example of free speech, it is an insult to it. If one steps back for a moment and weighs up the debate objectively and dispassionately, how does revealing this man’s name contribute to public discourse on paedophilia? The Oxford case raised difficult political issues about the ethnicity of those defendants, who were convicted, which perhaps generated genuine and valuable public debate at that time. But those men were convicted. This man is innocent.

And let’s say that for the sake of argument, here and there, some conversations about paedophilia were sparked by reports of this injunction being discharged. Is that enough to justify destroying an innocent man’s life? It is the absolutist nature of the approach in this case that many may find disturbing. The visceral, knee-jerk reaction in our culture to any issue even vaguely relating to free speech suggests the abdication of rationality and judgement and the blinkered application of puritanical and evangelical edicts that cannot be reconciled with any orthodox view of liberal values.

The contrast with the cool and measured approach (unlike, it is accepted, this post) of Lords Kerr and Wilson in their minority judgment is notable. Citing similar Canadian judgments that also take a very different approach to anonymity, they refuse to be seduced by overblown rhetoric and slogans. Instead, they rely on pragmatic common sense, sense of justice and experiential wisdom that engages with the sheer destruction wrought by a sadistic media on real people’s lives. Their basic humanity is what shines through so strongly. It gives some hope for the future.

Open justice

The principle of open justice is even less well understood than free speech. It is also a liberal principle with deep roots in protecting the individual against the state and its collectivist power. Open justice is not an aspect of free speech, contrary to what many assume. In the ECHR, it is not listed in Article 10 but Article 6. It is a right possessed by defendants, not the public. It obliges the court to open the doors to the public if the defendant wishes, for his protection.

The purpose of open justice is to hold the state to account in its treatment of accused persons. That means the judge, the prosecution and, arguably, the jury. This is why a proper understanding of open justice should mandate anonymity until conviction unless the defendant chooses otherwise. Open justice requires and means scrutiny of the state. It has nothing to do with individuals caught up in the process. A principle designed to protect defendants has strangely metastasized, allegedly vesting somehow in ‘the public’ in a way that misunderstands, again, the meaning of the actual doctrine.

Regardless of the merits of anonymity for actual defendants, the position of innocent third parties is clearly even stronger. The whole point of criminal trials is to mitigate the fact that human beings are bad at assessing emotive and contested factual scenarios on their own. It is the process that matters. As the minority of the Supreme Court correctly state, it is unsustainable to claim that ordinary people apply the legal standard of presumption of innocence in cases they hear about in the press.

Wragg claims the minority judges’ view of the damage that will be caused to Mr Khuja is ‘unsubstantiated’. One could perhaps point to the enormous expenditure, as well as the concern and anxiety that drove Mr Khuja to appeal all the way to the Supreme Court, as compelling evidence that the man himself must vehemently disagree with Wragg.

If the full rights to a fair trial are essential before punishing someone, then it must follow that natural justice must require rights for innocent third parties that are less extensive, but on the same spectrum for analogous reasons. That means anonymity for anyone not in the dock who is accused of crime by anyone in open court. In this case, the complainant did not know any personal details about her assailant other than that his first name was Tariq. It is therefore difficult to understand how Mr Khuja’s surname was mentioned in open court without being struck from the record and the judge warning those present not to repeat it. His application for temporary anonymity pending potential charge should have been heard in camera.

Open justice is a liberal principle designed to protect the individual from the overwhelming power of the state. As a liberal principle, it is individualistic in nature and designed to be deployed against those in power. It cannot therefore coherently be used to justify sacrificing Mr Khuja, an individual, in this way. Its deployment in defence of this decision merely demonstrates how little the principle of open justice is actually understood.

Conclusion

Lord Justice Leveson and much of the police service (see here at 3.5.2) now accept that even suspects should be anonymous until charged, never mind innocent third parties. This is a start but does not go far enough. The legal system is supposed to be just. Entirely innocent third parties, who are not even charged – never mind prosecuted or convicted – are entitled to expect better treatment than this. The rights of these innocent third party victims of the state are treated as nothing by the current system. This is, frankly, a disgrace. By immolating this man’s right to privacy, for nothing, the courts have brought the legal system into disrepute.

It is discouraging to be involved in a legal system that behaves in such a dispiritingly unjust manner. Worse still, it is done on the altar of principles whose meaning has been hollowed out and inverted by media entities whose incredible and unaccountable power toxifies our political discourse. Many will remember section 40 of the Crime and Courts Act 2013, which was designed to implement Leveson’s recommendation of a necessary cost incentive for the press to regulate itself properly in the light of grossly unethical and criminal behaviour across swathes of the print industry. The latest Conservative manifesto promises to repeal section 40. Is anyone remotely surprised?

Robert Craig is a PhD student at the University of Durham

The author would like to thank Gavin Phillipson, Tatiana Cutts, Sarah Paterson, Mark Leiser and Peter Ramsay for their helpful comments on a previous draft. The usual disclaimer applies.