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Supreme Court endorses open justice principle

25 July 2017. Published by Oliver Murphy, Associate

The Supreme Court has handed down its much anticipated judgment in Khuja (formally PNM) v Times Newspapers Limited. The judgment comes as a welcome restatement of the principles of open justice especially in the context of criminal investigations.

The Supreme Court has handed down its much anticipated judgment in Khuja (formally PNM) v Times Newspapers Limited . The judgment comes as a welcome restatement of the principles of open justice especially in the context of criminal investigations.

The facts are by now well known. An individual, Tariq Khuja (formally known by the initials PNM), was arrested along with nine others as part of an investigation by Thames Valley Police into child sex grooming (known as Operation Bullfinch). Mr Khuja was released on bail and was later released from arrest without any charge. The nine other men arrested by Thames Valley Police were charged with serious offences involving organised child sex grooming. At the trial of those nine men Mr Khuja's name was mentioned on multiple occasions. Operation Bullfinch is still an active investigation although there is no suggestion that Mr Khuja will face any further investigation.

The issue before the Supreme Court was whether the Times and the Oxford Mail should be able to publish information identifying Mr Khuja as someone who had been arrested, bailed and then de-arrested in connection with Operation Bullfinch. Alternatively, whether an injunction should be granted to prevent reporting of those details in circumstances where that publication may interfere with Mr Kuja's Article 8 right to a private and family life. Neither of the two newspapers sought to publish anything beyond material derived from the trial in which Mr Khuja was named.

Lord Sumption gave judgment for the majority. He was keen to stress that issues should be approached on the basis that there was a risk that anyone knowing the matters referred to at trial may conclude that Mr Khuja had been involved in sexual abuse notwithstanding that he had never been charged with any offence. 

The leading judgment starts from the position that it is a cardinal principle of the UK justice system that justice is openly administered; that decisions of the court, which are acts of the state, should be open to public scrutiny. The judgment recognises that there will be cases in which it will be necessary to derogate from that principle, but that those situations will usually only arise when derogation is necessary to protect the administration of justice itself, or to protect vulnerable members of society.

In deciding whether or not an injunction should be granted the Supreme Court stressed that it was not possible for a person to have a reasonable expectation of privacy in matters discussed at a public trial. The only basis then, on which Mr Khuja could argue that his right to a private and family life had been invaded, was on the basis of the impact that publication of trial proceedings would have on his relations with his family and their relations with the community. The impact on Mr Khuja's family would arise from the damage to Mr Khuja's reputation resulting from the reporting of matters discussed in open court.

The leading judgment recognises that the impact of reporting on Mr Khuja's family could be very serious. Lord Sumption pointed out that in both civil and criminal proceedings things are often said in court which affect third parties. However, in the context of court proceedings whatever is said about a third party is protected by privilege. The reporting of what is said in court proceedings is also protected by the absolute privilege from liability for defamation for fair, accurate and contemporaneous publication. The leading judgment reaffirms the position that this privilege is afforded so that open justice and the freedom of the press to report fairly and accurately on public judicial proceedings may be facilitated. The Supreme Court recognised that an unfortunate consequence of that system is that innocent people may suffer a collateral impact resulting from what is said about them in court. The majority were clear: that is the price to be paid for open justice to be delivered.  

In an action for defamation no injunction would be available to Mr Khuja on the basis of a fair and accurate report about what was said about him in court. Where an injunction on the grounds of direct damage to Mr Khuja's reputation was unavailable the Supreme Court found that it would not make sense to grant an injunction on the basis of the collateral impact on Mr Khuja's family arising from the same damage to Mr Khuja's reputation. Accordingly no injunction was granted to Mr Khuja and the Times and Oxford Mail were permitted to report proceedings, naming Mr Khuja.

Although the judgment is a useful analysis of the open justice principle it is also of interest because of what it contributes to the ongoing debate around reporting of criminal investigations. Lord Kerr and Lord Wilson in their dissenting judgment were concerned about the effect upon an innocent person's reputation arising from the publication of the fact of their arrest where no charge or conviction had followed. On top of this, in the context of reporting focusing on open justice and the operation of section 4(2) of the Contempt of Court Act, the dissenting judges were troubled that naming Mr Khuja would create a widespread belief that Mr Khuja was guilty of serious crimes (this was specifically acknowledged as a risk at the outset of the leading judgment). In these circumstances, the dissenting judges felt that "the scales have descended heavily in favour of PNM's rights under article 8; that he was likely to have established his right to an injunction against identification at full trial."

The majority followed the approach set out in re Guardian News and Media   that "the law proceeds on the basis 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 dissenting judges felt that this was a legal presumption that has no firm basis the majority approached the problem on the basis that the "law must of course take the presumption of innocence as its starting point."

In terms of the competing interests in naming Mr Khuja the majority referred back to re Guardian News and Media Ltd and Lord Rodger's remarks that "stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature." As a result the majority found that PNM's identity would not be a peripheral or irrelevant feature on any report. The majority were careful to note that it does not always follow that if there is sufficient public interest in the reporting of proceedings there will be public interest in identifying the individual involved. In that respect the courts have put in place the system of derogations laid out above.

Given the recent injunction cases of AJS v News UK and ERY v ANL  which have both involved the granting of injunctions to prevent the naming of those involved in criminal investigations, the judgment is a reminder that it is a central feature of the UK justice system that one is presumed innocent until proven guilty. When taken with the strong endorsement of the open justice principle the Supreme Court's judgment is a sensible validation of the media's presumptive entitlement to report on the details of criminal investigations aired in open court.