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Part 1 of this Case Preview (“Background and Appeal”) is available here.

Commenttomlinson_h_145119_bw_indmem

At the time of the Court of Appeal decision it seemed unlikely that the Supreme Court would grant permission to appeal as the relevant principles of law seemed well settled and the issue to be essentially, fact dependent (see, for example, my Case Comment at the time). The Court of Appeal proceeded on the basis of well-established principles and found that the judge had applied the right test and reached a conclusion he was entitled to reach on the facts.

However, the fact that permission has been granted – and is to be heard by a 7 judge panel – suggests that the Supreme Court believes that an important issue of principle is at stake. The issue identified in the Court’s case summary is in general terms:

“Whether the Court of Appeal erred in its interpretation and application of the approach to be taken in balancing the privacy rights of a person arrested but not charged with a crime against the right of the press to report open court proceedings following the Supreme Court’s decision in [A v BBC]”

There is considerable common ground between the parties to the appeal: the claimant accepts the importance of the principle of open justice, the defendants accept that, in some circumstances, the Article 8 rights of individuals will require derogations from open justice. It might be thought (and this is, in essence, the defendants’ argument) that this is simply a “balancing” of rights case – a fact sensitive issue which was a matter for the judge.

Furthermore, it also seems to be common ground that the fact that a person is suspected of an offence is a “private” matter which should not, in the absence of “public interest” justification be disclosed to the public. This not contested before the judge ([2013] EWHC 3177 (QB) [68]) and is not the subject of argument on the appeal.

What then are the issues of general importance at stake?  Two possible, overlapping, points can perhaps be identified.

First, there is the impact on the balancing exercise of the presumption of innocence. It is firmly established in previous case law (see CoA, [34]) that in considering the impact of the publication of the fact of an investigation or arrest, the court is entitled to proceed on the basis that that the public generally understand the presumption of innocence and are able to distinguish between suspicion and guilt.

This approach is not based on any evidence as to public attitudes or understanding and seems, at first sight, very unrealistic. The contrary approach – that most members of the public would take the view that there was “no smoke without fire” – seems rather more plausible. The current approach seems to involve a kind of “double counting” – it is taken because of the importance of the open justice principle but it then counts against Article 8 arguments of the claimant when the balancing exercise is carried out.

If the more realistic approach is taken then the claimant’s Article 8 rights are correspondingly stronger. If readers do not give the claimant the benefit of the presumption of innocence but read a report of his arrest as suggesting guilt then it could be argued that some specific public interest beyond the general importance of open justice would be needed to justify disclosing his identity.

Second, there is the question of the extent to which, when balancing the rights involved, the purposes of the “open justice principle” should be taken into account. The conventional view is that there is very strong public interest in open justice itself: regardless of the nature of the information being reported. It might, however, be argued that this approach does not involve a proper balancing of rights.

The purposes of the open justice principle were authoritatively set out by Lord Woolf MR in R v. Legal Aid Board ex p. Kaim Todner [1998] EWCA Civ 958, [1999] QB 966:

“it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely.” [14]

It could be argued that, when balancing rights, the Court should assess the contribution of a particular piece of information to advancing those purposes. Thus, for example, it might be argued that the fact that a person (who was not on trial) was suspected of an offence but never charged was a piece of information which makes very little contribution to the maintenance of public confidence in the administration of justice.

The claimant seeks to persuade the Supreme Court to look at the purpose of the open justice principle when deciding what weight it should be given in the circumstances of a particular case.

The case is an interesting and difficult one which is likely to produce a definitive restatement of the principles which apply when a party is seeking to derogate from the principles of open justice.

Originally posted on Inforrm’s Blog here. Reposted with kind permission.

Part 1 of this Case Preview (“Background and Appeal”) is available here.