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Magazine of the Chartered Institute of Journalists

The Privacy v Open Justice case the media could not afford to lose

UK Supreme Court in Parliament Square. Image: Tim Crook.
UK Supreme Court in Parliament Square. Image: Tim Crook.

On 19th July this year the UK Supreme Court ruled on a case that had previously been known as PNM v Times Newspapers.

It is one of the most significant media law judgements this century.

If the media had not been successful it is arguable that Open Justice as a vital principle of transparency and ensuring that justice was undoubtedly and manifestly seen to be done would have been disabled and put on the road to destruction.

Professional journalists and the media industry can thank News UK’s Times newspapers, and its award-winning investigative reporter Andrew Norfolk who has courageously exposed the failure of local government and police authorities to properly investigate child sexual grooming and prostitution.

Local newspapers also joined the media consortium fighting for the Open Justice principle.

The case turned on the right to identify a man who had been arrested by the police in a 2012 child grooming enquiry known as Operation Bullfinch.

He was given police bail, released, told that his case would be kept under review and never charged. But he was named during the Old Bailey trial of nine other men charged and prosecuted.

PNM was described as ‘a prominent figure in the Oxford area.’

From the get go the media were legally gagged from identifying him when the Magistrates’ court made an order under Section 4(2) of the 1981 Contempt of Court Act.

PNM did not feel it was right that he should become collateral damage as a result of being named and associated in a criminal trial arising from an enquiry where he had been effectively cleared of any wrongdoing.

As most properly trained professional journalists know, orders under this section usually relate to the postponement of reporting proceedings to avoid a risk of serious prejudice to somebody’s right to a fair trial.

Such orders should not be used to protect legal anonymity. If the court had tried to use the relevant section of this legislation, Section 11, it would have found it could not do so because the statute only confers the power on protecting identities withheld from the public before the court.

PNM was repeatedly named during proceedings at the Old Bailey when the media and public were present.

So this order was censorship; something recognised by Supreme Court Justice Lord Sumption who said: ‘The material is there to be seen and heard, but may not be reported. This is direct press censorship.’

PNM and his lawyers fought for his right to be protected from exposure through the privacy laws from 2012 to 2017.

This titanic battle between the privacy and the open justice principles has taken 5 years.

The legal costs of trying to protect the media and public’s right not to be censored in this way had to be fought at the High Court, at the Appeal Court and then the UK Supreme Court in Parliament Square.

Only the big legions in our industry could afford to take this risk, to fight so long and hard, and eventually succeed.

But it leaves a very serious warning.

The UK Supreme Justices voted 5 to 2 in favour of the media.

The existence of two dissenting rulings leaves powerful seeds and roots for the privacy argument to be resurrected and fought again in the future.

A newspaper industry in acute crisis with declining paper sales, siphoning of advertising by the global online giants of Facebook and Google, an unrelenting political attack on media corporations that they should be subject to state approved regulation, remains extremely vulnerable.

There is a Cold War being fought by a high profit privatised legal profession that knows in media law there is more money to be earned from ‘reputation management’ than fighting the press freedom corner.

The legal arguments for the media were skilfully advocated by Gavin Millar QC and barrister Adam Wolanski.

The regional newspaper group Newsquest were also key players in the media consortium fighting for newspapers in Oxfordshire and Wiltshire to be able to report the case fully.

The importance of the PNM case has been recognised by HoldtheFrontPage media law columnist Jennifer Agate who said:

The decision comes in the context of increasing use of what are effectively privacy injunctions in criminal proceedings. In one recent example, the press was restricted from reporting a criminal investigation into financial crime where the owner of the company had been interviewed under caution. In another, an injunction prevents the naming of an individual who was not even a suspect, but a witness in an investigation.

The Press Association’s legendary barrister and media law expert, and editor of ‘Media Lawyer’, Mike Dodd, devoted the first six pages of his September 2017 edition to the case.

So who is PNM? On the 19th of July 2017 he could be named in the media for the first time.

Tariq Khuja has always protested his innocence.

He had taken part in an identity parade.

A victim who had told police detectives that she had been raped by somebody called Tariq had not picked him out and she did not believe her rapist was in the line-up.

And so Mr Khuja has never been charged.

That is the public record and the Times Newspaper with the support of other media organisations fought tenaciously for the right to publish something that is arguably very much to Mr Khuja’s credit.

 

This is the first article by Tim Crook in a new regular column for the CIoJ’s Journal on media law, ethics and regulation.

Tim is Professor of Media Law & Ethics at Goldsmiths, University of London, and the author of Comparative Media Law & Ethics and the UK Media Law Pocketbook.