The clash between open justice and one’s good name

Khuja (formerly known as PNM) v. Times Newspapers [2017] UKSC 49, Supreme Court, read judgment

The outcome of this case is summed up in its title, an unsuccessful attempt to retain anonymity in press reporting.  It is a stark instance of how someone involved in investigations into very serious offences cannot suppress any allegations which may have surfaced in open court, even though no prosecution was ever brought against them.

Originally, the magistrates had granted an anonymity order under s.4(2) Contempt of Court Act pending any decision to charge. This order was  continued until after the Crown Court trial, at which point the judge had indicated an intention to lift the order. Mr Khuja then went to the High Court.

Tugendhat J, the Court of Appeal and the Supreme Court all said that he should not retain anonymity.

The majority of 5 judges

Lord Sumption gave the majority judgment in the Supreme Court. He set out the various statutory exceptions to the principle of open justice, and the way in which the law has responded to claims that someone’s Articles 8, 3 or 2 rights might be affected by publication. He pointed out the two different aspects being considered, that of  how trials are conducted (fully in open court) and that of how trials are reported. He emphasised the importance of press reporting

It has been recognised for many years that press reporting of legal proceedings is an extension of the concept of open justice, and is inseparable from it. In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so.

The various statutory exceptions suggested that it should not be for a court save in the most compelling circumstances to create further exceptions to the principle of open justice. The law of defamation had set itself firmly against prior restraint, namely the principle that an injunction should not be granted if the defendant intended to plead justification, i.e. that the allegations complained of were true.

At [20]ff, and against that context, Lord Sumption turned to the central arguments arising out of the clash of the right of privacy with freedom of expression.

The protection of reputation is the primary function of the law of defamation. But although the ambit of the right of privacy is wider, it provides an alternative means of protecting reputation which is available even when the matters published are true.

Previous cases had emphasised the fact-specific nature of the balancing exercise between privacy and expression.  But, Lord Sumption said,

Nonetheless, in deciding what weight to give to the right of the press to publish proceedings in open court, the courts cannot, simply because the issues arise under the heading “private and family life”, part company with principles governing the pre-emptive restraint of media publication which have been accepted by the common law for many years in the cognate areas of contempt of court and defamation, and are reflected in a substantial and consistent body of statute law as well as in the jurisprudence on article 10 of the Human Rights Convention.

He repeated the deservedly well known question posed and answered given by Lord Rodger in In re Guardian [2010] 2 AC 697 , posed originally by Romeo: what’s in a name?

‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected

Applying the law, Lord Sumption essentially approved of Tugendhat J’s approach (see [32)), with some mild caveats.

• Some members of the public who would equate suspicion with guilt and that there was some risk that PNM and members of his family, including his children, would be subject to some unpleasant behaviour, possibly amounting to harassment. Lord Sumption “might have been less sanguine about this.”
• Mr Khuja would have no means of clearing his name if the media confined themselves to fair, accurate and contemporaneous reporting attracting absolute privilege.
• Going the other way,  members of the public generally will understand the difference between suspicion and guilt. And some knowledge of what had been said about him at the trial would spread among those who knew him personally or by name, so that restrictions on press reporting would be of little if any benefit to him or his family.
• There was the highest public interest in the allegations of child abuse, which were the subject of continuing police investigations. The reports would be likely to make an important contribution to the knowledge of the public and to informed debate about the administration of justice. Publication might also encourage witnesses to come forward, or lend significance to the fact if they did not come forward.
• Under section 12(3) of the Human Rights Act 1998, the judge could not make the order unless satisfied that the claimant was likely to succeed at a trial. He concluded that the claim was likely to fail.

Lord Sumption pointed out that the impact on his family on what was said at trial

is no different in kind from the impact of many disagreeable statements which may be made about individuals at a high profile criminal trial. A defendant at such a trial may be acquitted, possibly on an issue of admissibility, after bruising disclosures have been made about him at the trial. Within the limits of professional propriety, a witness may have his integrity attacked in cross-examination. He may be accused by other witnesses of lying or even of having committed the offence himself.

Barristers and witnesses are immune from liability and what is said may be reported under the protection of the absolute privilege from liability for defamation for fair, accurate and contemporaneous publication.

The immunity and the privilege reflect the law’s conviction that 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.

Lord Sumption would not rule out the possibility of a pre-emptive injunction (which this was not) where the information was private or there was no sufficiently substantial public interest in publication. But this would happen rarely in public court proceedings. There was a public interest in Mr Khuja’s identity; it was not a peripheral or irrelevant feature of the story.

The minority

Lords Kerr and Wilson focussed on and questioned the presumption adopted by the majority, that most people understand that someone charged or indeed arrested is innocent until proved guilty. The law says that, but do most members of the public think that?

They identified the increasing concern, by judges and others, of

the ease with which arrest may generally be associated with guilt

citing the vilification which the hapless Mr Jefferies had received at the hands of the press for a murder he did not commit.  They cited Leveson LJ’s recommendation in the Press Inquiry 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.

In 2013, senior judges in a response to a Law Commission Consultation paper (subscribed to by Tugendhat J and Leveson LJ) said this:

The police arrest many people who are never charged. If there were a policy that the police should consistently publish the fact that a person has been arrested, in many cases that information would attract substantial publicity, causing irremediable damage to the person’s reputation.

In 2016, Cobb J gave judgment in Rotherham Metropolitan Borough Council v M [2016] EWHC 2660 (Fam). Rotherham had made a teenage girl a ward of court and had secured interim injunctions that four named men should not associate with her. It had alleged that they had been sexually exploiting her. None of the four men had been charged with any offence in relation to her, but two of them had been arrested in that connection and they remained on police bail. Rotherham also sought orders against identification not only of the girl but also of the four men. Cobb J acceded to this.He reached the firm conclusion that

 there is no true public interest in naming the four associated males, against whom, in the end, no findings have been sought or made. [Their] article 8 rights … would be in my judgment significantly violated were they to be publicly exposed in the media as having been implicated to a greater or lesser degree, but not proved to be engaged, in this type of offending.”

Lords Kerr and Wilson thought that these observations

show great insight and to resonate strongly with the facts of the present case.

In the absence of this presumption about what members of the public really think, the balancing exercise between privacy and freedom of expression had to be carried out afresh.

In ringing terms, they thought that he (PNM) was entitled to his injunction: against the more meaningful nature of a story with a name attached:

this court needed first to recognise the risk to PNM that his identification would generate a widespread belief not only that he was guilty of crimes which understandably attract an extreme degree of public outrage but also that he had so far evaded punishment for them; and then, in consequence, to balance the risk of profound harm to the reputational, social, emotional and even physical aspects of his 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.