As previously noted on Inforrm, the Supreme Court has dismissed (by a majority of 5-2) the appeal 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 section 4(2) of the Contempt of Court Act 1981. 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:
- 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.
- 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 article 8 and article 10 rights of the parties.
The test
In A v BBC the Supreme Court refused to lift an s.11 Contempt of Court Act 1981 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 article 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].
Privacy
The majority held that Mr Khuja could have no reasonable expectation of privacy in respect of the matters whose publication he sought to prevent because they were discussed at a public trial [34(1)]. Lord Sumption framed this a proposition of general application, noting that “there is no reasonable expectation of privacy in relation to proceedings in open court” [34(3)].
Having reached that conclusion, the majority assessed that the only claim available to Mr Khuja was based on the adverse impact on his family life which would follow from the damage to his reputation [34(3)]. While recognising the collateral impact that the publication would have on his relations with his family and on their relations with the community, Lord Sumption considered that this was a price to be paid for open justice and the freedom of the press to report on court proceedings [34(2)].
The majority held that there is a public interest in reporting on the processes by which cases such cases are investigated are brought to trial and on the use of s.4(2) orders [34(4)]. Invoking Lord Rodger’s “what’s-in-the-name” dicta from Re Guardian News and Media, Lord Sumption considered that the public interest extended to reporting Mr Khuja’s identity, which was not peripheral or irrelevant [34(5)].
Lords Kerr and Wilson had no difficulty in accepting that Mr Khuja had a reasonable expectation of privacy in respect of the information disclosed in open court and they proceeded to conduct the ultimate balancing exercise (as it applies at the interim relief stage). Their Lordships accepted that the naming of Mr Khuja in the criminal trial created a “powerful extra dimension to the public interest in the proposed publications” and that there was merit in The Times’ argument that naming Mr Khuja would make the proposed article more engaging and meaningful [57] – [58]. Ultimately, however, they considered that the “scales descended heavily in favour of [Mr Khuja’s] under article 8” on the basis that:
“[H]is identification would generate a widespread belief not only that he was guilty of crimes … but also that he had so far evaded punishment for them; and then, in consequence, to balance the risk of profound harm to the reputational, social, emotional and even physical aspects of his private and family life, notwithstanding that he is presumed by the law to be innocent and has had no opportunity to address in public the offences of which at one time the police suspected him to be guilty” [58].
Comment
This was an ambitious appeal and its outcome is unsurprising given the weight carried by the open justice principle in English law. The majority’s judgment is a robust reassertion of the pre-eminence of that principle. Equally, the powerful dissenting judgment of Lords Kerr and Wilson is illustrative of growing disquiet about the privacy rights of individuals arrested/investigated but not charged with criminal offences.
Although this case focussed on the interaction between the right to privacy in the fact of an arrest/investigation and open justice in a criminal trial, it has broader resonance for asserting privacy rights in respect of information revealed in open court in any proceedings.
Khuja is unlikely to have significant implications for the evolving (and unsettled) application of the law of privacy to arrests /police investigations. This has been the subject of recent case law (including ERY v Associated Newspapers [2016] EWHC 2760 (QB) and ZXC v Bloomberg [2017] EWHC 328 (QB)) and non-judicial consideration (e.g., the Henriques Review and the College of Policing Guidance on Relationships with the Media). The open justice considerations at play in Khuja mean that it is readily distinguishable from the reporting of arrests and investigations which have not been ventilated in open court. On any analysis, the countervailing article 10 rights are greater when such facts are disclosed in open court. It is notable that the respondents accepted at first instance [68] that, prior to its being mentioned at trial, the information whose publication Mr Khuja sought to injunct was private.
It is unclear whether the majority intended to lay down a general proposition that there can be no reasonable expectation of privacy in relation to information revealed in open court. Having made this statement, Lord Sumption went on to accept that there may be circumstances in which a privacy injunction could be granted in relation to such matters. His Lordship indicated that this might be the case “where the information was private” (which seems to be irreconcilable with his broader proposition that privacy is lost when information is revealed in open court) or where there was “no sufficiently substantial public interest in publication” [34(4)]. Lord Sumption’s judgment also omits any reference to the law of privacy when referring to the limitations applicable to reporting on judicial proceedings [34(5)].
Any such presumption would be a cause for serious concern as it would provide carte blanche for the reporting on private information solely on the basis that a party or witness had revealed it in open court. When reporting on private information revealed in open court, the nature and purpose of the intrusion may be the furtherance of the open justice principle – militating against there being a reasonable expectation of privacy. Yet this is just one of the non-exhaustive list of factors set out in Murray v Big Pictures [2008] EWCA 446 relevant to whether a person has a reasonable expectation of privacy.
Further consideration might have been given to the protection-from-intrusion aspect of privacy. As was reaffirmed in PJS v NGN [2016] UKSC 16, the protection of law of privacy is not contingent upon the information being confidential/not having been made available to the public. Protection extends to the intrusion into a subject’s private and family life likely to result from the (re)publication of (private) information. The intrusion associated with the (re)publication to the wider public of information revealed to a small number of people in open court is likely to be qualitatively different. This would seem to be a highly relevant consideration in such cases.
The open justice principle is undoubtedly of profound importance to the public’s and the media’s article 10 rights, parties’ article 6 rights (and conceivably their article 5 and 7 rights), as well as to the administration of justice and state accountability more broadly. It must therefore be a significant consideration when undertaking the ultimate balancing exercise in a privacy claim. Open justice may, however, be too easily (and uncritically) accepted as trumping article 8 rights without sufficient regard to factors such as: the nature of the information concerned; the reasons for which it was revealed in open court; and the extent to which reporting that information would advance the underlying rationale of the open justice principle. Arguably, there is a need for a more nuanced approach, taking account of such considerations and weighing these against the subject’s article 8 rights. Due deference to editorial discretion/judgement could be accommodated within such an analysis.
Finally, Lord Sumption indicated that Mr Khuja may have been better served by making an application for anonymity at/before trial to prevent his being identified in open court in the first place [34(1)] and [35]. It may have been easier to justify such restrictions than a derogation from the open justice principle [35]. Assuming that such an order could have been properly granted, it could have been fortified by an section 11 order. Yet, this too would have been open to challenge (as occurred – unsuccessfully – in A v BBC) and it is far from clear that the result would have been any different. The scope for and means by which third parties can obtain anonymity in criminal and civil proceedings merits further consideration.
Aidan Wills is a barrister at Matrix Chambers, he specialises in media, public and employment law.
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