As has been widely reported as a victory for press freedom, the recent case of Khuja v Times Newspapers and others  UKSC 49 (formerly known in its anonymised form as PNM v Times Newspapers) has been dismissed on appeal to the Supreme Court. The Appellant, Mr Khuja, sought to injunct The Times newspaper from reporting information revealed during a (public) Crown Court trial – information related to his arrest on suspicion of child sex offences.
Mr Khuja was arrested in 2012 following a complaint made against a number of men in the Oxford area, including against someone with Mr Khuja’s first name. Shortly after his arrest, Magistrates made a s4(2) Contempt of Court Act 1981 Order which prevented any reporting that might identify Mr Khuja because of the serious risk of prejudice to future proceedings. The complainant subsequently failed to identify Mr Khuja at an ID parade and he was released on bail.
Although he was not involved in the subsequent Old Bailey proceedings, Mr Khuja was referred to by the complainant and police witnesses during cross examination, closing speeches, and in summing up. Further s4(2) Orders were made such as to prohibit the reporting of any evidence which might have identifed Mr Khuja. He was not charged with any offences.
In 2013, following convictions of a number of other men, the trial judge indicated in a draft judgment that he would lift the Order preventing Mr Khuja from being identified. However, prior to the trial judge’s final decision, Mr Khuja applied to the High Court for a privacy injunction preventing The Times from reporting the fact of his arrest on suspicion of child sex offences.
On 15 October 2013, Tugendhat J refused Mr Khuja’s application on the basis that the material disclosed was in open court and publication was in the public interest. A subsequent appeal to the Court of Appeal was dismissed in 2014. Mr Khuja then appealed to the Supreme Court
The Supreme Court had three issues to tackle – (1) whether the ‘ultimate balancing test’ as set out in Re S  UKHL 47 had been modified in A v BBC  UKSC 25 – such that there was in fact no parity between Articles 8/10 and one might automatically take precedence over the other; (2) whether Tugendhat J had erred at first instance in treating Lord Rodger’s observation that “most members of the public understand that you are innocent until proven guilty” (Lord Rodger in Re Guardian News & Media  UKSC 1) as a legal presumption; and (3) whether Mr Khuja could have any reasonable expectation of privacy in respect of matters disclosed in a (public) Crown Court trial.
Summarising the Supreme Court’s findings on each point in turn:
(1) A v BBC  concerned the Supreme Court’s refusal to lift an anonymity order preventing the identification of a convicted foreign sex offender. A had been anonymised for the purposes of UK immigration proceedings. The Court held that to reveal his identity would pose a serious risk to those immigration proceedings and to A’s health and safety. In the present case it was accepted that the A v BBC  decision turned on very particular facts and did not modify the general approach set out by Lord Steyn in Re S – that neither Article 8/10 takes precedence over the other (the ‘ultimate balancing test’) which remained the correct approach to take;
(2) In Re Guardian News and Media , the Supreme Court discharged anonymity orders in relation to individuals subject to terrorism investigations. The individuals concerned had not been charged with any offence. Lord Rodger took the, perhaps optimistic, view in that case that most members of the public would not consider the individuals guilty until proven so. In the present case the Supreme Court accepted that this was not a legal presumption which necessarily applied in all circumstances. Lord Sumption considered that there was “a risk” (emphasis added) of a member of the public concluding that PNM had sexually abused the complainant, but that for Tugenhadt J to reason otherwise was not an error of law; and
(3) Mr Khuja could have no reasonable expectation of privacy as regards information disclosed at a public trial, with Lord Sumption stating that: “there is no reasonable expectation of privacy in relation to proceedings in open court” (at [34(3)]). Whilst Mr Khuja may, arguably, have had a claim as regards the adverse impact on his family life resulting from publication by The Times, Lord Sumption also considered this “a price to be paid for open justice and the freedom of the press to report on court proceedings” (at [34(2)]). However, he did accept that there may be cases where “information was private” (emphasis added) and there could in some cases be “no sufficiently substantial public interest in publication” (at [34(4)]), although he did not expand on this any further.
The decision in Khuja v Times Newspapers sits comfortably within the accepted overriding principle of open justice in English law – where matters are stated in open court then the press is entitled to report upon that information. However, it does little to address the media’s right to report on details concerning the arrest/investigation of an individual by the police (i.e. at the pre-trial, or even pre-charge, stage), as considered in other recent cases (see ERY v Associated Newspapers  EWHC 2760 (QB) and ZXC v Bloomberg  EWHC 328 (QB)). This is a highly contested area area where further guidance would be helpful.
In the present case the Respondents accepted that, but for the disclosure in open court, the information Mr Khuja sought to restrain from being published was private in nature. Lord Sumption took the view that, in seeking to restrain publication of such information, a claimant is better served by making an application for anonymity at/before trial in order to prevent being identified in open court at the outset rather than seeking to contain the information after the fact.