Full case report

Khuja (formerly known as PNM) v Times Newspapers Ltd

Reference [2017] UKSC 49
Court Supreme Court

Judge Lord Neuberger PSC, Lady Hale DPSC, Lords Kerr, Clarke, Wilson, Sumption, Reed JJSC

Date of Judgment 19 Jul 2017


Summary

Open Justice – Privacy – Contempt of Court Act 1981 – Criminal Proceedings – Injunctions – Reporting Restrictions – anonymity – postponement of reporting


Facts

In the course of “Operation Bullfinch”, a police investigation into child sexual exploitation, one of the complainants X identified a person sharing a name with the Appellant, PNM. PNM was arrested, but never charged. He was not picked out in an identity parade.

At the Old Bailey trial of nine men in connection with organised child grooming and child prostitution, X repeated in her evidence the allegations against PNM, and he was referred to by name by at least one of the defendants and by prosecuting counsel.

PNM’s identity was originally covered by a reporting restriction under s.4(2) of the Contempt of Court Act 1981, imposed by HHJ Rook QC in the criminal trial. The Respondents tried on three occasions to lift the s.4(2) order, and were twice refused. After the police confirmed in July 2013 that PNM would be released without charge, HHJ Rook QC prepared a draft judgment proposing to lift the order, as it could no longer be said that proceedings were “pending or imminent” against PNM.

Before that draft judgment could be formally handed down, PNM applied to the High Court for a privacy injunction. His claim was dismissed both by Tugendhat J [2013] EWHC 3177 (QB) and by a Court of Appeal consisting of Lord Dyson MR, Sharp and Vos LJJ [2014] EWCA Civ 1132.

Until hand-down of the Supreme Court decision, the s.4(2) order of HHJ Rook QC was continued to preserve the status quo.


Issue

(1) Had the Supreme Court in A v BBC [2014] UKSC 25; [2015] AC 588 modified the approach to the ‘ultimate balancing test’ (Article 8 v Article 10 ECHR) in Re S [2004] UKHL 47; [2005] 1 AC 593?

(2) Whether the courts below had erred by treating Lord Rodger’s observation that “most members of the public understand that … you are innocent until proven guilty” (In re Guardian News & Media [2010] UKSC 1; [2010] 2 AC 697 at [66]) as a legal presumption?


Held

Appeal dismissed, Lord Sumption (with whom Lord Neuberger PSC, Lady Hale DPSC, and Lords Clarke and Reed agreed):

(1) While A v BBC was a case that turned on its particular facts, Lord Reed’s judgment in that case did not modify the general approach set out by Lord Steyn in Re S or by Lord Rodger in In re Guardian News & Media.

(2) Lord Rodger had not created such a legal presumption, let alone a rebuttable one, and Tugendhat J had not treated it as such. There was no error of law in his refusal of the injunction, or in the Court of Appeal declining to interfere.

Dissenting on the second ground, Lords Kerr and Wilson: that Lord Rodger had been articulating a legal presumption & that Tugendhat J fell into error in relying upon it.


Comment

A thorough review by Lord Sumption of the authorities which concern Open Justice, anonymity, reporting restrictions and privacy injunctions more generally. The majority judgment is particularly interesting for its discussion of the inter-relationship between the law of reputation, the law of privacy, and the law of contempt of court by publication.

The Court was unanimous in rejecting the first ground of appeal. This is unsurprising: it is difficult to see how the legal basis of the Re S balancing exercise could have been modified, in that it requires a fact-sensitive balancing of Convention Rights. At most, there could only have been obiter comment seeking to affect the calibration of that balancing exercise, and the majority declined to do so, recognising the extensive intervention of Parliament in crafting limits to the scope of the courts’ ability to derogate from Open Justice.

As to second ground of appeal, the difference between the majority and minority is whether Lord Rodger was articulating a presumption, and whether Tugendhat J and the Court of Appeal had applied it as a presumption of law. But the minority and majority are agreed that there is no such presumption, and it should not be applied as such. This may in future allow, in particular case, for evidence to be called on public attitudes as to the guilt or otherwise of an applicant for a privacy injunction.


Instructing Solicitors

Appellant: Collyer Bristow LLP Respondents: Times Newspapers Limited Legal Department & Newsquest Media Group Ltd Legal Department


Links

Judgment