On 19 July, in a long awaited judgment, the UK’s Supreme Court rejected an application for a privacy injunction by a man caught up in the Oxford child grooming scandal.
Privacy injunctions (as opposed to more standard reporting restrictions) are typically the preserve of wealthy footballers and celebrities, often those with sexual secrets to hide. But in this case, the circumstances were very different, addressing the question of whether matters exposed at a public criminal trial may be reported.
Mr Tariq Khuja (formerly anonymised as PNM) was described as a prominent figure in the Oxford area. In 2012, he was arrested, along with a number of other suspects, as part of a long-running investigation by Thames Valley Police known as “Operation Bullfinch“. Although he was eventually released without charge, nine men were brought to trial, seven of whom were convicted of offences including rape and conspiracy to rape children, trafficking and child prostitution. Although Mr Khuja was not a defendant, he was referred to at various times in open court.
Open justice is a fundamental principle of the English courts, allowing the public to attend, and the press to report, proceedings which are held in public. However the principle is subject to limited exceptions, an increasingly common example being the application of the European Convention on Human Rights, specifically the right to respect for private and family life under Article 8.
Mr Khuja initially applied for restrictions under Section 4(2) of the Contempt of Court Act 1981 preventing his identification on the basis that naming him while there was still a risk that he would be charged, would prejudice his right to a fair trial. The restrictions were granted. However, when the police confirmed that he would be released without charge, the justification for those restrictions fell away.
In October 2013, he applied to the High Court for an interim privacy order preventing the reporting of any information which would lead to his identification in reports of the proceedings. When the High Court and Court of Appeal refused his request, he persisted all the way to the Supreme Court.
The Supreme Court quickly established that there is no reasonable expectation of privacy (the first test for privacy injunctions) in relation to proceedings in open court. The only avenue left was in relation to the adverse impact reporting of his name could have on his family life. The court then had to consider whether that impact was outweighed by public interest.
The court’s judgment, delivered by Lord Sumption, noted that the sexual abuse of children, especially on an organised basis, is a subject of great public concern. Ever more so in light of concerns that the police and child protection authorities have failed to adequately protect vulnerable children and adults from sexual abuse by older men, the Rotherham scandal being a case in point.
Taking all of this into account, the Supreme Court dismissed the appeal (by a majority of five to two), finally allowing the identification of Mr Khuja after four years of proceedings.
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.
In presenting the judgment, Lord Sumption said that he recognised that the Court’s reaffirmation of this crucial principle could lead to some unfairness in certain circumstances. But in a memorable phrase, he described this unfairness to the innocent as “collateral damage which is the price that we pay for a transparent system of public justice“. No doubt Mr Khuja will disagree, but this is the right decision for open justice.