July 19, 2017
Khuja v Times Newspapers Limited and others 2017 UKSC 49

The question at issue on this appeal was whether an injunction should issue to prevent The Times and the Oxford Mail from publishing information identifying PNM as someone who had been arrested, bailed, his passport impounded and then de-arrested in connection with the long-running investigation, or as someone suspected by the police of being involved in sexual offences against children.

An injunction had been originally granted under section 4(2) of the Contempt of Court Act 1981, at a preliminary hearing before the magistrates shortly after PNM’s arrest in order to avoid “a substantial risk of prejudice to the administration of justice”. The magistrates’ order prohibited the disclosure of any information which might identify PNM as the subject of pending criminal proceedings until such time as he was charged with an offence.

At the trial, evidence was given of the exploitation of six girls who at the relevant time were aged between 11 and 15. One of the girls was the complainant whose statements to the police had led to PNM’s arrest. On 25 January 2013, immediately before she was due to give her evidence, PNM applied for a further order under section 4(2). At that time, he was still on bail. His application was heard in open court, and in the course of it the fact of PNM’s arrest and the serious offences of which he was suspected were discussed. The prosecution agreed that it was inevitable that the complainant would refer to PNM in the course of her evidence. The judge made an order postponing publication of any information which might identify him as the person referred to by that complainant, on the ground that there was a significant risk that his right to a fair trial might be prejudiced.

The situation changed on 25 July 2013, when the police notified PNM that he would be released from arrest without charge, but that the case would be kept under review. In the light of the police’s letter, on 25 September 2013, The Times and the Oxford Mail applied again to have the section 4(2) order lifted on the ground that there were now no “pending or imminent” proceedings against PNM which could be prejudiced by publication.

On 14 October 2013 the Judge circulated a draft ruling stating that he proposed to lift the order. But he never formally did so, presumably because the matter moved to the High Court.

Immediately after receiving the draft ruling, PNM applied to the High Court for an interim injunction restraining publication of any information liable to identify PNM as (i) a person arrested, released on bail or released without charge in connection with the investigation of offences against children, (ii) the subject of the section 4(2) orders made by the lower court, or (iii) the claimant in the High Court proceedings.

The basis of the application was that the order was necessary to protect PNM against the misuse of private information and the infringement of his right to private and family life protected by article 8 of the European Convention on Human Rights.

In support of the proposition that press reporting of legal proceedings “is an extension of the concept of open justice, and is inseparable from it”, the majority referred to Edmonton Journal.

In writing for the majority, Lord Sumption stated:

I conclude with two points. The first is that the only question before us is whether a pre-emptive interlocutory injunction should issue. Nothing that I have said should be taken to limit the range of remedies that may be available after publication if the rights of the claimant are found to have been violated. The second is that restrictions on the reporting of proceedings in open court are particularly difficult to justify. It may in some cases be easier to justify managing the trial in a way which avoids the identification of those with a sufficient claim to anonymity. Applications for anonymity in the courtroom will generally raise many issues other than the impact on the applicant or his family. They will include the fairness of the trial, the nature of the issues, and the existence and extent of any legitimate public interest in the applicant’s identity. I am in no position to suggest that such an application would have succeeded in PNM’s case, if it had been made. But if there is a solution to the problem of collateral damage to those not directly involved in criminal proceedings, that is where it is to be found.