Full case report
PNM v Times Newspapers Ltd
Reference  EWHC 3177 (QB)
Court High Court, Queen's Bench Division
Judge Tugendhat J
Date of Judgment 22 Oct 2013
Privacy – identification – criminal proceedings – reporting restrictions – open justice – article 8 – article 10
C had been arrested on suspicion of having committed serious sexual offences against children. Others had been arrested at the same time. At an initial hearing in the Magistrates’ Court, an order was made under s.4(2) of the Contempt of Court Act 1981 on 24 March 2012 prohibiting the disclosure of information that might identify C as the subject of pending proceedings until such time as he was charged with a criminal offence.
C was not charged, but others who had been arrested were, and their case proceeded to trial. In the course of the trial, C applied for a new s.4(2) order on 25 January 2013. A complainant had referred to an alleged abuser by a name which was the same as his, and the purpose of the application was for an order postponing publication of information which might identify C as the person referred to. The judge made a s.4(2) order, finding that there was a live investigation, and his order was varied on 4 February.
In the course of the application for the order, the fact of C’s arrest, and the nature of the offences of which he was suspected were read out in open court, but publication was prohibited by the s.4(2) order.
On 8 May 2013 The Times, D1, applied to lift the s.4(2) order of 4 February. C’s counsel and the Prosecution both opposed the application to discharge the order. At a hearing on 16 May 2013 the judge declined to discharge the order, stating that it might be appropriate to review the position at the end of September if no decision had been made whether or not to charge C.
On 25 July 2013 C was notified by the police that he was to be released without charge in respect of the offences for which he had been arrested, but that the case would be kept under review.
The matter came back before the judge at the end of September 2013, C seeking the continuation of the s.4(2) order, the Prosecution submitting that in the absence of pending or imminent proceedings there was no basis for the order to be continued, and D1 making the same submission.
C applied to the court for a privacy injunction to prevent him being identified in relation to the police operations which had led to seven convictions. On notification by C, D1 and the Oxford Mail, D3, replied stating that they wished to report the proceedings concerning the imposition and lifting of the order, relying on the public interest in such a report.
Whether C should be granted a privacy injunction in respect of information liable to identify him as a person who had been arrested in the criminal proceedings, or as a party to the High Court proceedings, or as the subject of the s.4(2) order in the criminal proceedings.
(1) Should the impact on C’s children be taken into account as part of the balancing exercise?
(2) Was there a sufficient public interest in publishing a report of the proceedings which identified C to justify curtailing his and his family’s right to a private and family life?
Dismissing C’s application:
(1) The evidence in relation to C’s children was not such as to produce a different outcome in the balancing exercise. C’s position, as an adult non-party to proceedings, had specifically been addressed by the court in Re S.
(2) There was a sufficient general, public interest in publishing a report of the proceedings which identified C and the normally reportable details to justify any resulting curtailment of his and his family’s right to respect for their private and family life. The reports sought to be restrained by C would make an important contribution to the knowledge of the public and to debates about the administration of justice. They might lead to witnesses coming forward, and it might be significant if no witness came forward.
C remained anonymised pending the outcome of any appeal.
The procedural history of the constraints on the reporting of C’s name was convoluted. However, once the possibility of prejudice to pending or imminent proceedings was finally extinguished, C’s only course to prevent being named was a claim was to protect his and his family’s privacy. The Judge acknowledged the difficulties facing C: that not all members of the public would understand the difference between suspicion and guilt, and that, with no trial process to which he was party, there was no obvious means for him to clear his name.
The decision on this unusual application emphasises the extent to which the courts will protect the press’s ability to report criminal proceedings even in the face of such difficulties. The public interest in doing so is a powerful one, and there is a reluctance to chip away at this principle where this might affect the knowledge of the public about the administration of justice in general, or about the details of specific allegations.
Wells Burcombe for C; Times Legal Department and Newsquest Legal Department for D1 and D3
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.