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As previously noted, the Supreme Court has dismissed (by a majority of 5-2) the appeal Wills_A (2)in Khuja v Times Newspapers and others [2017] UKSC 49, an important case dealing with the interaction between privacy, the open justice principle and the right to report on judicial proceedings.

Mr Khuja failed in his attempt to obtain an interim non-disclosure order (a privacy injunction) preventing the respondent newspapers/journalists from identifying him, on the basis of information revealed during a public Crown Court trial, as someone arrested (but not charged) on suspicion of committing sexual offences against children.

Background

In March 2012, Mr Khuja was one of a number of people arrested on suspicion of committing sexual offences against children in the Oxford area. A complainant had made allegations about an alleged perpetrator who had the same name first name as Mr Khuja but she failed to identify him as her abuser at an identification procedure. While nine other individuals were charged, police released Mr Khuja on bail.

Shortly after his arrest, and within the context of an application made by the police in relation to Mr Khuja’s property, magistrates made an under order under the Contempt of Court Act 1981, s 4(2). This postponed, until such time as he was charged with a criminal offence, any reporting which may identify Mr Khuja as the subject of pending proceedings on the basis that this posed a substantial risk of prejudice to the administration of justice.

Between January and May 2013, the defendants were tried at the Old Bailey. Mr Khuja was neither a defendant nor a witness. The trial concluded in May 2013; seven defendants were convicted of serious sexual offences and two were acquitted. During the course of the trial, the complainant gave evidence that she had been abused by a man with Mr Khuja’s first name and a police officer gave Mr Khuja’s full name when informing the court that he had not been identified as the alleged abuser. He was also referred to in cross-examination, closing speeches and in the summing up.

During the trial, Mr Khuja obtained a further s 4(2) order (and variations thereto) and the respondents made unsuccessful applications to have the order discharged. In the context of these applications, the fact of and reasons for his arrest were stated in open court. Immediately after the trial, the judge varied the s 4(2) order prohibiting (until further order) reporting of the evidence presented in the proceedings which may identify or tend to identify, by any means, Mr Khuja as a person referred to in that evidence.

In July 2013, the police informed Mr Khuja that he would not be charged, with the case to be kept under review. The respondents again applied to have the s 4(2) order lifted on the footing that there were no pending/imminent proceedings. In October 2013, the trial judge had circulated a draft ruling indicating that he would lift the order. Before he issued a final decision, Mr Khuja applied to the High Court for a privacy injunction preventing The Times, the Oxford Mail and two journalists from publishing the fact of his arrest (and release without charge) on suspicion of committing serious sexual offences against children and associated information.

In a decision of 15 October 2013, Tugendhat J refused the application. This was primarily on the basis that the respondents’ proposed reporting was confined to material disclosed in open court and there was a sufficient public interest in publishing a report of the proceedings (identifying Mr Khuja), which would make an important contribution to debates about the administration of justice. This justified any ensuing curtailment of his right and his family’s right to respect for their private and family life [83].

The Court of Appeal unanimously dismissed Mr Khuja’s appeal, with Sharp LJ giving the only judgment.

Judgment of the Supreme Court

Lord Sumption (with whom Lady Hale and Lords Neuberger, Clarke and Reed agreed) gave the judgment of the majority. Lords Kerr and Wilson gave a joint dissenting judgment.

After undertaking a detailed review of the law on open justice and the reporting of court proceedings in this jurisdiction and in Canada, Lord Sumption went on to consider the appellant’s two primary arguments:

  1. The Supreme Court’s decision in A v BBC[2014] UKSC 25 had modified the approach to derogations from the open justice principle so as to mean that the House of Lords’ decision in Re S (A Child) [2004] UKHL 47 was now less relevant.
  2. By adopting Lord Rodger’s observations from Re Guardian News and Media[2010] UKSC 1, concerning the public’s capacity to distinguish between suspicion and guilt, Tugendhat J (and the Court of Appeal) had applied an unwarranted legal presumption when balancing the art 8 and art 10 rights of the parties.

The test

In A v BBC the Supreme Court refused to lift a Contempt of Court Act 1981, s 11 order preventing the identification of a convicted foreign national sex offender, who had been anonymised in the context of immigration proceedings. The Court held that the publication of information enabling A to be identified would have subverted or frustrated the immigration proceedings (at [73]). A’s art 3 rights were protected by the anonymity order; a tribunal had accepted that there was a serious risk of violence if A’s identity became known in his country of origin in connection with the proceedings [74]. Returning to Khuja, the majority took the view that A v BBC turned on very particular facts and did not represent a departure from the approach taken in Re S  and Re Guardian News and Media, which was endorsed in A v BBC [28]. The dissenting judgment does not take issue with this analysis.

Lord Rodger’s dictum in Re Guardian News and Media

In Re Guardian News and Media, the Supreme Court discharged anonymity orders granted by the Treasury to individuals whose assets had been frozen on the grounds of suspected facilitation of terrorism. They had not been charged with any offence. Lord Rodger said that:

“The identities of persons charged with offences are published, even though their trial may be many months off. In allowing this, 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” [66].

The majority in Khuja held that this statement was confined to describing the basis on which English law permits the pre-trial identification of persons charged with offences. Lord Rodger was not advancing a legal presumption which applied in all circumstances and, in referring to this passage, Tugendhat J was doing no more than stating that, while some members of the public equate suspicion with guilt, most would not [33].

Although Lord Sumption considered that the case had to be approached on the basis “that there is a real risk that a person knowing of these matters would conclude that PNM had sexually abused the complainant notwithstanding that he had never been charged with any offence” [8] and that he might have been less sanguine about this possibility than Tugendhat J, he concluded that the judge had committed no error of law [34].

Lords Kerr and Wilson disagreed, holding that this dictum amounted to a “controversial [legal] presumption” for which there was no basis [56].  Its effect is that:

“[A]bsent good reason for departing from it, the courts should act on the principle that most people believe that someone charged with an offence, and still more someone not charged with an offence but simply arrested on suspicion of it, is innocent until proved guilty” [44].

Their characterisation of Lord Rodger’s statement was founded on its implying that no investigation or evidence on public attitudes is necessary [45] and they criticised his Lordship for not citing any authority or evidence in support of the presumption [47].

The dissentients considered that the privacy rights of persons suspected or accused of crimes are undermined by Lord Rodger’s legal presumption. They concluded its application by the lower courts amounted to an error of law in balancing the competing rights under articles 8 and 10 [56].

Please see Part Two here.

This article was originally posted on Inforrm.