What's in a name? Article 8 privacy rights v the principle of open justice in criminal trials

A man who was arrested on suspicion of child sex abuse then released and never charged has been named after losing a long and costly legal battle to keep his identity secret.

Last week the Supreme Court handed down judgment in the long awaited case of Khuja (formerly known as PNM) v Times Newspapers [2017] UKSC 49.

Background

The case arose out of the trial at the Old Bailey of nine men on exceptionally serious charges involving organised child sex grooming and child prostitution in the Oxford area over a period of eight years. The men were arrested in March 2012 by Thames Valley Police after a long-running investigation known as "Operation Bullfinch". Following a trial that subsequently took place in May 2013, seven of the men were convicted. The trial attracted considerable publicity in the national and local press and in the broadcast media.

Tariq Khuja, who was described in court as "a prominent figure in the Oxford area" was also arrested at around the same time as the nine that faced trial. The reason for his arrest was that one of the complainants had told the police that she had been abused by a man with the same, very common, first name. However, she failed to pick him out at an identity parade. He was later told by the police that he would be released from arrest without charge but that the case would be kept under review. Whilst police investigations are ongoing, Mr Khuja has never been charged with any offence and there is, apparently, no present reason to believe that he ever will be.

Shortly after Mr Khuja's arrest an injunction was granted by the magistrates' court, under section 4(2) of the Contempt of Court Act 1981 ("the 1981 Act"), which provides the court with a power to order that contemporary media reporting be postponed where there is a substantial risk of prejudice to those or other imminent or pending legal proceedings. Specifically, the order made by the magistrates prohibited the disclosure of any information which could identify Mr Khuja (known in the proceedings as PNM) as the subject of pending criminal proceedings until such time as he was charged with an offence.

A significant part of the relevant victim's evidence related to her abuse by a man (X) with the same first name as Mr Khuja. As a result Mr Khuja's name was referred to on several occasions in open court during the course of the trial. By this stage he had still not been told he would not be charged and, accordingly, the judge hearing the criminal trial extended the order made under section 4(2) of the 1981 Act, varying its scope so as to prohibit the publication of any report which referred to evidence which might tend to identify him until a decision had been made whether or not to charge him.

Various unsuccessful efforts were made by the press to lift the section 4(2) order during the course of the criminal trial. The situation changed, however, on 25 July 2013 when the police notified Mr Khuja that he would be released from arrest without charge. In light of this decision, The Times and the Oxford Mail applied again to the judge, this time successfully, on the ground that there were now no "pending or imminent" proceedings against Mr Khuja which could be prejudiced by publication. After the Judge circulated a draft ruling stating that he proposed to lift the order, Mr Khuja applied to the High Court for an injunction restraining publication of any information liable to identity him, amongst other things, as a person that had been arrested in connection with the investigation of offences against children.

This application was dismissed by Mr Justice Tugendhat at first instance and subsequently by the Court of Appeal. Despite this, Mr Khuja continued his legal battle and obtained permission to have the matter heard by the Supreme Court.

The Supreme Court's decision

In a majority decision (5:2), the Supreme Court referred to its previous decision in In Re Guardian News and Media Ltd [2010] 2 AC 697 in which Lord Rodger of Earlsferry noted that "most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law". Whilst the majority (Lord Neuberger, Lady Hale and Lords Sumption, Clarke and Reed) endorsed this view as a general rule, they did make clear that the conclusions the public may draw from a criminal trial would differ from case to case, depending on, among other things, the gravity of the allegations, the character of the evidence and the extent of publicity surrounding the trial. In this regard the majority said "it would be foolish for any court to ignore the extreme sensitivity of public opinion in current circumstances to allegations of the sexual abuse of children."

Notwithstanding this, Mr Khuja was seeking to prohibit the reporting of matters of considerable public interest that had been discussed at a public trial. Whilst the hearing of a case in public may be "painful" or "humiliating" for those involved, directly or indirectly, the majority supported the view of Lord Atkinson in Scott v Scott [1913] AC 417 that the principle of open justice was "the best security for the pure, impartial and efficient administration of justice" and "the best means for winning for it public confidence and respect". Moreover, it was acknowledged that the way in which a story is presented is a matter of editorial judgment and the publication of a suspect's identity is generally important to the administration of justice since it may "encourage witnesses to come forward, or lend significance to the fact if they did not come forward." Many will, of course, recall that is exactly what happened in the case of BBC broadcaster Stuart Hall. Most of his victims came forward after the media reported he had been arrested on a handful of allegations (he ultimately admitted 14 charges of indecent assault).

Whilst it was recognised that the principle of open justice is not absolute (for example in cases involving blackmail where open justice "can often result in no justice at all"), it was held that Mr Khuja did not have a reasonable expectation of privacy that his identity would remain a secret. In particular it was held that the impact on his family life of him being identified would be indirect and incidental: neither he nor his family participated in any capacity at trial, and, indeed, nothing that was said at trial related to his family. This was regardless of the fact that Mr Khuja and his members of his family, including his children, would likely be subject to some unpleasant behaviour, possibly amounting to harassment, and that he would have no immediate means of clearing his name, providing the media confined themselves to fair, accurate and contemporaneous reporting attracting absolute privilege under section 14 of the Defamation Act 1996. As the majority made clear "the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public."

Summary

Lords Kerr and Wilson disagreed with the view of the majority. In their dissenting judgment (paragraphs 37 to 59), they stated that the Court ought to have recognised the "profound harm to the reputational, social, emotional and even physical aspects of [Mr Khuja's] private and family life, notwithstanding that he is presumed by the law to be innocent and has had no opportunity to address in public the offences of which at one time the police suspected him to be guilty". Whether or not this will be the catastrophic effect of the decision to identify Mr Khuja is unclear. However, it does highlight that this will be a disappointing judgment for those that say individuals falsely accused of crimes should have greater privacy rights.

In Lord Justice Leveson's report on press ethics, published following his 2011-2012 inquiry, he recommended that "the police should not release the names or identifying details of those who are arrested or suspected of a crime". Likewise, Sir Richard Henriques, in his review of the Metropolitan Police Services' investigation of non-recent sexual offence allegations against public figures, concluded that a statutory scheme of anonymity pre-charge should be introduced.

In light of such recommendations the College of Policing has amended its policy on relations with the media so that it will not name those arrested, or suspected of a crime, save in exceptional circumstances where there is a legitimate policing purpose to do so. In making this change the College of Policing specifically recognises that, in cases where the police name those who are arrested, there is a risk of unfair damage to the reputations of those persons, particularly if they are never charged.

Such decisions have seen a growing recognition that the identity of those suspected of crimes should not generally be released to the public before charge. It had been thought that this could result in similar protection being afforded to innocent parties named in open court. As it is, the Supreme Court has laid the question to rest, holding that the media acts as the eyes and ears of the public in court and that as it is a fundamental principle of open justice that legal proceedings must be open to public scrutiny and the media must be allowed to report what is stated in open court. The majority suggested the solution in future may be to manage a criminal trial in such a way which avoids the identification of those with a sufficient claim to anonymity. How feasible that is will remain to be seen.

If you require further information on anything covered in this briefing please contact Michael Patrick or your usual contact at the firm on 020 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2017