In this guest post, Hugh Tomlinson QC previews an appeal to the Supreme Court in a case that considers where the balance lies between rights to privacy and the principle of open justice. The post was first published on the Inforrm blog.
On 17 and 18 January 2017, a seven judge Supreme Court will hear the claimant’s appeal against the decision of the Court of Appeal in the case of PNM v Times Newspapers ( EWCA Civ 1132).
That Court had upheld the judge’s view that, on the basis of the “open justice principle”, information mentioned in open court concerning a person who was arrested but not charged could be reported.
The claimant was one of a number of men arrested in March 2012 in connection with a Thames Valley Police investigation into allegations of child sex grooming and prostitution. The claimant was released on bail and was subsequently notified that he was to be released without charge.
Nine men were charged and a criminal trial took place at the Central Criminal Court between January and May 2013. The claimant was not a party or witness at the criminal trial. On 25 January 2013 order under section 4(2) of the Contempt of Court Act 1981 was made prohibiting publication of any report which referred to evidence which may identify or tend to identify him.
On 14 May 2013, seven of the defendants were convicted of numerous serious sexual offences. A further order under section 4(2) of the Contempt of Court Act 1981 was made on the claimant’s application. It prohibited disclosure of details of applications made to the Court by Thames Valley Police (which concerned certain of the claimant’s property).
The claimant’s full name was mentioned in open court when a police officer said that a witness had failed to pick him out on an identification parade. He was also mentioned in the course of cross-examination, in speeches and in the summing up.
At the conclusion of the criminal trial the Judge declined to discharge the section 4(2) order until the decision was made as to whether the claimant would be charged. In July 2013 the police notified the claimant that he was not going to be charged. The Times and the Oxford Mail applied to discharge the section 4(2) but, before he had handed down his ruling, the claimant applied to the High Court for an injunction.
By an application made on 15 October 2013 against the Times, the Oxford Mail and two journalists, the claimant sought an order to prevent publication of the fact of his arrest on suspicion of committing serious sexual offences against children and associated information because of the fear of the damage such publications may cause to him and his family, including his children.
The application was heard by Tugendhat J who, in a judgment handed down on 22 October 2013 ( EWHC 3177 (QB)) refused to grant an interim injunction. The claimant’s appeal to the Court of Appeal was dismissed.
Sharp LJ pointed out that:
“The ordinary rule is that the press may report everything that takes place in open court. It is a strong rule both domestically and in European jurisprudence and can only be displaced by unusual or exceptional circumstances … Any application to depart from it must therefore be carefully scrutinised” 
The rule derived strength from the “open justice principle” . Reporting of court proceedings “engages the public interest and has an intrinsic value” . The defendants had made it clear that they intended to publish a fair and accurate report of the trial and nothing more.
Sharp LJ rejected the argument that the claimant’s rights were broadened as a result of the risk that any report of the trial might, even if accurate, “might lead to other stories about him and to members of the public suspecting he is guilty” . Tugendhat J had been entitled to proceed on the basis that members of the public are able to distinguish between suspicion and guilt ( to ).
The second strand of the claimant’s argument that the public interest considerations deriving from the open justice principle were overridden by the presumption of the innocence. Sharp LJ rejected this argument, because the approach to open justice was well settled and most members of the public understand the presumption of innocence. The position had not been altered by the decision of the Supreme Court in A v British Broadcasting Corporation  UKSC 25 (“A v BBC”).
On 18 February 2015, the Supreme Court granted the claimant permission to appeal [pdf]. The appeal will be heard nearly 2 years later and almost 5 years after the appellant’s arrest.
The claimant argues that A v BBC represents an “important recalibration” of the open justice principle on the basis that it made it clear that
- the common law was the source of the principle 
- The principle can develop in response to changes in society and the administration of justice 
- The courts should focus on the purpose of the principle and the value of the contentious information in advancing that principle .
- There should be a more “proactive” approach to developing the principle  to .
He contends that the Court of Appeal failed to give proper weight to, inter alia,
- the development of the law in other common law jurisdictions (particularly Canada);
- the growing recognition that the identity of those arrested or suspected of a crime should not generally be released to the public;
As a result, it is said that the common law should develop to provide an exception to the open justice principle on the facts of this case and that this would not prevent the advancement of the true purpose of open justice.
The defendants argue that these contentions are misconceived because the Court of Appeal correctly concluded that A v BBC did not alter the applicable principles – which are derived from Re S ( 1 AC 593) and Re Guardian News and Media ( 2 AC 697). They contend that the Article 8 rights of the claimant are “simply not powerful enough” to defeat the strong Article 10 rights of the Respondents to report on criminal proceedings.
The defendants argue that neither the Strasbourg case law nor that from any other common law jurisdiction supports the claimant’s argument that an exception to the open justice principle should be made in his case.
At the time of the Court of Appeal decision it seemed unlikely that the Supreme Court would grant permission to appeal as the relevant principles of law seemed well settled and the issue to be essentially, fact dependent (see, for example, my case comment at the time). The Court of Appeal proceeded on the basis of well-established principles and found that the Judge had applied the right test and reached a conclusion he was entitled to reach on the facts.
However, the fact that permission has been granted – and is to be heard by a 7 judge panel – suggests that the Supreme Court believes that an important issue of principle is at stake. The issue identified in the Court’s case summary is in general terms:
Whether the Court of Appeal erred in its interpretation and application of the approach to be taken in balancing the privacy rights of a person arrested but not charged with a crime against the right of the press to report open court proceedings following the Supreme Court’s decision in [A v BBC]
There is considerable common ground between the parties to the appeal: the claimant accepts the importance of the principle of open justice, the defendants accept that, in some circumstances, the Article 8 rights of individuals will require derogations from open justice. It might be thought (and this is, in essence, the defendants’ argument) that this is simply a “balancing” of rights case – a fact sensitive issue which was a matter for the judge.
Furthermore, it also seems to be common ground that the fact that a person is suspected of an offence is a “private” matter which should not, in the absence of “public interest” justification be disclosed to the public. This is not contested before the judge ( EWHC 3177 (QB) ) and is not the subject of argument on the appeal.
What then are the issues of general importance at stake? Two possible, overlapping, points can perhaps be identified.
First, there is the impact on the balancing exercise of the presumption of innocence. It is firmly established in previous case law (see CA, ) that in considering the impact of the publication of the fact of an investigation or arrest, the court is entitled to proceed on the basis that that the public generally understand the presumption of innocence and are able to distinguish between suspicion and guilt.
This approach is not based on any evidence as to public attitudes or understanding and seems, at first sight, very unrealistic. The contrary approach – that most members of the public would take the view that there was “no smoke without fire” – seems rather more plausible. The current approach seems to involve a kind of “double counting” – it is taken because of the importance of the open justice principle but it then counts against Article 8 arguments of the claimant when the balancing exercise is carried out.
If the more realistic approach is taken then the claimant’s Article 8 rights are correspondingly stronger. If readers do not give the claimant the benefit of the presumption of innocence but read a report of his arrest as suggesting guilt then it could be argued that some specific public interest beyond the general importance of open justice would be needed to justify disclosing his identity.
Second, there is the question of the extent to which, when balancing the rights involved, the purposes of the “open justice principle” should be taken into account. The conventional view is that there is very strong public interest in open justice itself: regardless of the nature of the information being reported. It might, however, be argued that this approach does not involve a proper balancing of rights.
The purposes of the open justice principle were authoritatively set out by Lord Woolf MR in R v. Legal Aid Board ex p. Kaim Todner ( QB 966):
“it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely.” 
It could be argued that, when balancing rights, the Court should assess the contribution of a particular piece of information to advancing those purposes. Thus, for example, it might be argued that the fact that a person (who was not on trial) was suspected of an offence but never charged was a piece of information which makes very little contribution to the maintenance of public confidence in the administration of justice.
The claimant seeks to persuade the Supreme Court to look at the purpose of the open justice principle when deciding what weight it should be given in the circumstances of a particular case.
The case is an interesting and difficult one which is likely to produce a definitive restatement of the principles which apply when a party is seeking to derogate from the principles of open justice.
Hugh Tomlinson QC is a barrister at Matrix Chambers and an editor of Inforrm.