Yesterday the Supreme Court declined to protect the privacy of a prominent businessman who was arrested but not charged in sexual exploitation operation and upholds the right of journalists to report matters mentioned in open court. Greg Stewart was asked to comment on the judgment by Lexisnexis, a leading legal publisher. The judgment reinforces the primacy of open justice and freedom of expression guaranteed by article 10 of the ECHR. It highlights the importance of applying at trial to protect privacy rather than restrictions on freedom to report - once the information is in the open it is difficult to justify curtailing mention of it even if private lives are affected. Greg Stewart is a director at GT Stewart Solicitors & Advocates with experience of media restrictions in sensitive criminal cases involving young people, anonymous witnesses and national security.

Supreme Court dismisses privacy injunction--claimant had 'no reasonable expectation of privacy'

The Supreme Court has dismissed an appeal against the refusal of a privacy injunction to a man who had been arrested, but not charged, in connection with a criminal investigation into child prostitution. The Court had been asked to rule on whether the Court of Appeal had erred in its approach to balancing the privacy rights of a person who is arrested--but not charged with a crime--against the right of the press to report criminal proceedings in the public interest. Lawyers say the ruling upholds the principle of open justice, although such cases will inevitably attract media attention.

In PNM v Times Newspapers Ltd and others [2014] EWCA  Civ 1132, the appellant had been arrested in March 2012 as part  of Thames Valley Police's 'Operation Bullfinch' into  organised child sex grooming and child prostitution in the Oxford  area. On 14 May 2013 seven of nine men originally arrested were  convicted. The appellant, however, was never charged with an  offence, and was 'de-arrested' in July 2013.

Background to the reporting restriction order

One of the complainants had told the police she had been  abused by a man with the same first name as the appellant, who  made an application for an order postponing publication of  information which might identify him as the person referred  to.

The Crown Court subsequently made a reporting restriction  order. The appellant had been released on bail, but proceedings  against him remained 'active'.

In October 2013, the appellant was told that the criminal  trial judge was proposing to discharge the reporting restriction  order. The Times and the Oxford Mail newspapers wished to publish  reports identifying the appellant as having been arrested,  bailed, his passport impounded and then de-arrested in connection  with Operation Bullfinch, relying on the public interest to  publish.

The appellant applied to the High Court for a privacy  injunction to prevent him being identified, and to protect his  and his family's privacy. The application was refused.

Court of Appeal finds 'a sufficient general public  interest'

On 1 August 2014, the Court of Appeal dismissed the  claimant's appeal against the High Court's refusal of his  application for a privacy injunction. Tugendhat J concluded that  there was a sufficient general public interest in publishing a  report of court proceedings which identified the claimant, to  justify any resulting curtailment of his right and his family's  right to respect for their private life.

Majority ruling upholds ruling on privacy versus public  interest

In a case now re-named Khuja (Appellant) v Times Newspapers  Ltd and others (Respondents) (formerly known as PNM (Appellant) v  Times Newspapers Ltd and others (Respondents)) [2017] UKSC  49, the Supreme Court dismissed the appeal by a majority of five  to two, finding that the judge had committed no error of law.

Tugendhat J ruled that, while the appellant wanted to prohibit  the reporting of matters heard at public trial, he could have not  had any reasonable expectation of privacy about these  matters.

The judge added that the impact on the appellant's family  life is indirect and incidental--neither he nor his family had  participated in any capacity at trial, and nothing said at trial  related to his family. The judgment clarified that the policy to  allow media reporting on judicial proceedings depends on:

o the right of the public to be informed about a significant  public act of the state

o the law's recognition that the way in which the story is  presented is a matter of editorial judgment

'A victory for open justice'

Greg Stewart, director and higher court advocate at GT Stewart  Solicitors & Advocates, commented: 'The majority of the  court took the view that the "genie was out of the bottle",  while the minority adopted the "mud sticks" approach.

'Of primary importance to the majority view was the principle of open justice to transparent and civilised society. That principle cannot be diluted by the common law and is subject to a narrow range of statutory restrictions. The minority view was critical of the assumption that the public know people are innocent till proven otherwise, and could find no real public interest in associating Mr Khuja with the criminal trial that mentioned his arrest. However, the majority judgment drew attention to the fact he was already named by prosecution witnesses, a defendant and in both the prosecution and defence speeches.

'The majority verdict did note that in other cases applications could be made not to mention the identity in open court--rather than to seek restrict reporting of it--which may lead to greater scrutiny of that issue in future trials and more applications. The fact that someone who had sat in the public gallery already was aware of Mr Khuja's identity, and those who knew him may well have been alerted to the unproven allegations, obviously lessened the impact of publication now.

He called the case a 'victory for open justice which may lead to more care being taken as to what gets mentioned in open court'.

'A fair trial when information has been published in the  media?'

Marie Bourke, senior associate at Russell-Cooke, commented:  'The judgment does not come as a surprise; the English justice  system prides itself on its openness and transparency.

'There have been many failed challenges to the reporting of  names of those under investigation or facing trial before the  court, but the position in this case is different to those who  stand trial. Mr Khuja is not a defendant, he has not been  charged, although the police have stated that the case remains  under review. It was acknowledged by the Tugendhat J in the High  Court that by not being a defendant in the trial, "he would  have no means of clearing his name...".

'While there are members of the public who are able to  differentiate between suspicion and guilt, there will be many who  have the attitude of "there's no smoke without fire". The  damage that can be caused to a person's reputation as a result  of the media publishing a person's name before they are charged  can be irreparable, and can impact their family and their  relationships beyond repair.

'While I do not believe it should be one rule for one person  and one rule for another, the person's public status is of  relevance. They will and people will be more inclined to remember  the stories they have read and the discussions they have had  about that person.

'It is therefore difficult to guarantee, that if charged, a  person would receive a fair trial when information regarding the  investigation has been published, even in our open and  transparent justice system.'

Source: Khuja (Appellant) v Times Newspapers Limited and others (Respondents) (formerly known as PNM (Appellant) v Times Newspapers Limited and others (Respondents)) [2017] UKSC 49