01 Aug (UK) Privacy, Reporting Restrictions – Supreme Court allows identification of man named in criminal trial

The Supreme Court has recently given judgment in a case in which an Oxford businessman attempted to obtain an order for anonymity after he was referred to in a child sexual grooming trial. The court ruled against Mr Tariq Khuja, who can now be named.

Mr Khuja was arrested as part of Thames Valley Police’s ‘Operation Bullfinch’, after a complainant reported that she had been abused by a man with the same, very common, first name as Mr Khuja. The complainant did not pick Mr Khuja out of an identity parade. He was released and has never been charged. He has always maintained his innocence.

Nine men went on trial on charges involving organised child sex grooming and child prostitution. In 2013 seven of those men were convicted. During the trial, the judge made an order under section 4(2) Contempt of Court Act preventing the reporting of Mr Khuja’s name – which was referred to during the course of the trial, in both the complainant’s witness evidence and counsel’s submissions. This order was in place to prevent prejudicing any future trial.

When it became clear that there were no proceedings against Mr Khuja either active or imminent, the press applied to lift that order and Mr Khuja sought a privacy injunction from the High Court. He argued that his Article 8 ECHR right to private and family life would be infringed by being named.

The court sought to balance Mr Khuja’s privacy rights with the freedom of expression rights of the press and public. Applying previous case law, both the High Court and Court of Appeal decided that the balance came down in favour of freedom of expression, open justice being a cornerstone of the UK legal system. The majority of the Supreme Court, by a margin of 5:2, came to the same conclusion.

The judges addressed the question of whether there was a legal presumption that most members of the public understand that you are innocent until proven guilty. The majority found that there was not a legal presumption to be applied whatever the circumstances, it was simply the case that the judge in this case had found that whilst some of the public would equate suspicion with guilt, most would not.

The two dissenting judges took the view that there had been a legal presumption to this effect based on previous case law, but that this was without evidential foundation and should be re-considered. They noted the amount of concern in recent years over the reputational damage done to individuals named as suspected of crimes, and the move towards the police not releasing or confirming names of those arrested.

Ultimately the majority decided that open justice must prevail. The impact on Mr Khuja’s family life was indirect, neither he nor they participated in the trial. He had no reasonable expectation of privacy in matters referred to in open court. There was a public interest in the story, and Mr Khuja’s identity was not an irrelevant feature of the story. If Mr Khuja had sought to use the law of defamation to obtain an injunction it would not have been granted as fair and accurate reporting of matters said in open court attracts absolute privilege (if the report is contemporaneous), or qualified privilege (if it is later).

Giving the lead judgment, Lord Sumption suggested that if the Article 8 (privacy) rights of individuals referred to in criminal trials are to be protected, the appropriate way would be through managing the criminal trial in such a way that they are not identified in open court in the first place. Once a name has been referred to in open court, where it can be heard by any member of the public attending court, as the public are entitled to, it is extremely difficult to justify a restriction on it being reported.

This is an interesting decision and discussion by the highest court in the land of the difficulties facing those suspected and/or arrested but not charged with any offence.