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On 17 and 18 January 2017, a seven judge Supreme Court will hear the claimant’s appeal against the tomlinson_h_145119_bw_indmemdecision of the Court of Appeal in the case of PNM v Times Newspapers [2014] EWCA Civ 1132. 

That Court had upheld the judge’s view that, on the basis of the “open justice principle”, information mentioned in open court concerning a person who was arrested but not charged could be reported.  

Background

The claimant was one of a number of men arrested in March 2012 in connection with a Thames Valley Police investigation into allegations of child sex grooming and prostitution. The claimant was released on bail and was subsequently notified that he was to be released without charge.

Nine men were charged and a criminal trial took place at the Central Criminal Court between January and May 2013. The claimant was not a party or witness at the criminal trial. On 25 January 2013 order under the Contempt of Court Act 1981, s 4(2) was made prohibiting publication of any report which referred to evidence which may identify or tend to identify him.

On 14 May 2013, seven of the defendants were convicted of numerous serious sexual offences. A further order under s 4(2) of the 1981 Act was made on the claimant’s application. It prohibited disclosure of details of applications made to the Court by Thames Valley Police (which concerned certain of the claimant’s property).

The claimant’s full name was mentioned in open court when a police officer said that a witness had failed to pick him out on an identification parade. He was also mentioned in the course of cross-examination, in speeches and in the summing up.

At the conclusion of the criminal trial the Judge declined to discharge the section 4(2) order until the decision was made as to whether he claimant would be charged. In July 2013 the police notified the claimant that he was not going to be charged. The Times and the Oxford Mail applied to discharge the s 4(2) but, before he had handed down his ruling, the claimant applied to the High Court for an injunction.

By an application made on 15 October 2013 against the Times, the Oxford Mail and two journalists, the claimant sought an order to prevent publication of the fact of his arrest on suspicion of committing serious sexual offences against children and associated information because of the fear of the damage such publications may cause to him and his family, including his children.

The application was heard by Tugendhat J who, in a judgment handed down on 22 October 2013 ([2013] EWHC 3177 (QB)) refused to grant an interim injunction.  The claimant’s appeal to the Court of Appeal was dismissed.

Sharp LJ pointed out that

“The ordinary rule is that the press may report everything that takes place in open court. It is a strong rule both domestically and in European jurisprudence and can only be displaced by unusual or exceptional circumstances . . .  Any application to depart from it must therefore be carefully scrutinised” [21]

The rule derived strength from the “open justice principle” [23]. Reporting of court proceedings “engages the public interest and has an intrinsic value” [24]. The defendants had made it clear that they intended to publish a fair and accurate report of the trial and nothing more.

Sharp LJ rejected the argument that the claimant’s rights were broadened as a result of the risk that any report of the trial might, even if accurate, “might lead to other stories about him and to members of the public suspecting he is guilty” [33]. Tugendhat J had been entitled to proceed on the basis that members of the public are able to distinguish between suspicion and guilt ([33] to [36]).

The second strand of the claimant’s argument that the public interest considerations deriving from the open justice principle were overridden by the presumption of the innocence. Sharp LJ rejected this argument, because the approach to open justice was well settled and most members of the public understand the presumption of innocence. The position had not been altered by the decision of the Supreme Court in A v British Broadcasting Corporation [2014] UKSC 25.

On 18 February 2015, the Supreme Court granted the claimant permission to appeal [pdf]. The appeal will be heard nearly 2 years later and almost 5 years after the appellant’s arrest.

The appeal

The claimant argues that A v BBC represents an “important recalibration” of the open justice principle on the basis that it made it clear that

  • the common law was the source of the principle [27]
  • The principle can develop in response to changes in society and the administration of justice [40]
  • The courts should focus on the purpose of the principle and the value of the contentious information in advancing that principle [41].
  • There should be a more “proactive” approach to developing the principle [56] to [57].

He contends that the Court of Appeal failed to give proper weight to, inter alia,

  • the development of the law in other common law jurisdictions (particularly Canada);
  • the growing recognition that the identity of those arrested or suspected of a crime should not generally be released to the public;

 As a result, it is said that the common law should develop to provide an exception to the open justice principle on the facts of this case and that this would not prevent the advancement of the true purpose of open justice.

The defendants argue that these contentions are misconceived because the Court of Appeal correctly concluded that A v BBC did not alter the applicable principles – which are derived from Re S [2004] UKHL 47, [2005] 1 AC 593 and Re Guardian News and Media [2010] UKSC 1, [2010] 2 AC 697. They contend that the Article 8 rights of the claimant are “simply not powerful enough” to defeat the strong Article 10 rights of the Respondents to report on criminal proceedings.

The defendants argue that neither the Strasbourg case law nor that from any other common law jurisdiction supports the claimant’s argument that an exception to the open justice principle should be made in his case.

Part 2 of this Case Preview (“Comment”) is available here.

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