July 19, 2017

The Supreme Court today rejected an appeal by a 5-2 majority of an application for an injunction to prevent the publication of the name of an individual arrested on suspicion of child sex grooming and child prostitution. The man, named by the court as Mr Tariq Khuja, who has always denied the allegations against him, was later de-arrested, although investigations continue. Nine of the men also arrested as part of the same police investigation called Operation Bullfinch did stand trial.

Substantial risk of prejudice
While Mr Kuhja remained on bail, an injunction was ordered under section 4(2) of the Contempt of Court Act 1981 to prevent publication of his name due to a “substantial risk of prejudice to the administration of justice” in the event Mr Kuhja was charged. As a consequence, although Mr Kuhja’s name was stated repeatedly during the trial of the nine others (although he did not himself appear as a witness) it was not permitted to be reported by those media outlets covering the trial.

Once Mr Khuja was de-arrested, The Times and Oxford Mail applied to Judge Rook to have the order lifted as reporting Mr Khuja’s name could no longer prejudice any “pending or imminent” proceedings against him. The judge’s draft opinion shows that he was inclined to lift the injunction, but before his judgment could be handed down, Mr Khuja applied to Mr Justice Tugendhat in the High Court for an injunction misuse of Mr Khuja’s private information, that private information being his name, and infringement of his Article 8 right to privacy and family life. Tugendhat J in the first instance and the Court of Appeal following both dismissed the application.

Supreme Court
Handing down the judgment for the majority of 5:2, Lord Sumption explained the importance of maintaining the open justice principle, relying on Lord Rodger’s observation in In re Guardian News and Media Ltd [2010] 2 AC 697 (66), that “most members of the public understand that, even when charged with an offence, you are innocent until proved guilty.” Conducting a fact sensitive analysis, the court was particularly compelled by the fact that the injunction sought to prevent publication of matters that had already been made public at trial and was for the purpose of protecting the private life of a non-party to the criminal proceedings at issue.

Sumption LJ confirmed that extending the limitations of the open justice principle to non-parties to the extent applied for here would (citing In re S [2005] 1 AC 593 (32-33)) “seriously inhibit the freedom of the press to report criminal trials.” Here the court refused to do so particularly where Mr Khuja had no reasonable expectation of privacy because his identity was already made public at the original trial and generally known to members of his community, tipping the balance of competing rights in favour of the Article 10 rights of the press.

The court further considered the public interest in publishing Mr Khuja’s name, as compared to reporting on the proceedings with his name anonymised. Sumption LJ reasoned that allegations of child abuse are of the “highest public interest” and how such a story is presented will be a “a matter of editorial judgment, in which the desire to increase the interest of the story by giving it a human face is a legitimate consideration”, concluding that Mr Kuhja’s identity is not a “peripheral or irrelevant feature of this particular story.” While acknowledging that this decision does leave Mr Khuja as collateral damage of a trial to which he was not a party, Sumption LJ noted that the appropriate course of action would have been to apply for anonymity in the courtroom, not to restrict the reporting of proceedings in open court.

In dissent, Lords Kerr and Wilson, arguing that Tugendhat J, in balancing the parties’ Article 8 and Article 10 rights, relied in error on the presumption that members of the public would presume Mr Khuja was innocent until proven guilty because such presumption has “no legal foundation”.

Comment
This is an important decision upholding freedom of expression and the public’s right to know. The Supreme Court has recognised that the way in which a story is presented is a matter of editorial judgment. This is one in a series of high profile High Court judgments, particularly over the last few months, which we have commented on here and here, where the court has seemed to test the outer reaches of the balancing of rights in the context of reporting on criminal investigations. Although the court continues here to engage in a fact sensitive exercise, hopefully its renewed emphasis on the weight to be given to the open justice principle and free expression will put a halt to the creeping erosion of press freedom by ever more ingenious privacy claims that we have seen over the last decade.