PNM v (1) Times Newspapers Ltd (2) Andrew Norfolk (3) Newsquest (Oxfordshire and Wiltshire) Ltd (4) Ben Wilkinson
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 22 October 2013 |
| Neutral Citation | [2013] EWHC 3177 (QB) |
| Date | 22 October 2013 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X05086 |
[2013] EWHC 3177 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ13X05086
Manuel Barca QC and Hannah Ready (instructed by Wells Burcombe) for the Claimant
Adam Wolanski (instructed by Times Legal Department) for the 1st & 3rd Defendants
Hearing dates: 15 October 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Honourable Mr Justice Tugendhat Mr Justice Tugendhat On 15 October 2013 I heard the Claimant's application for an interim non-disclosure order (that is a privacy injunction). The circumstances are unusual and raise an important question on the principle of open justice. At the start of the hearing I made clear that I was sitting in open court. But in order to ensure that the purpose of the application for a non-disclosure order would not be defeated by any disclosure made during the course of the parties' submissions, I made this order pursuant to the Contempt of Court Act 1981 s.4(2) ("s.4(2)"):
"IT IS ORDERED that in order to avoid substantial risk of prejudice to the administration of justice in pending or imminent proceedings the court orders that there should be no report published which refers to today's proceedings and which may identify or tend to identify by any means the Claimant/Applicant until further order
The purpose of this order is to protect the fairness of the trial [of this High Court] action from publication of the material referred to, which, if published might have a substantially adverse effect on the fairness of the proceedings".
Also at the start of the hearing Mr Wolanski undertook on behalf of the Defendants that they would not publish any information of the kind sought to be protected by the order now applied for until I had given judgment on this application.
POSTPONEMENT OF REPORTING
The Contempt of Court Act 1981 s.4(2) reads:
"[In legal proceedings held in public] the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."
The purpose of an order under s.4(2) is not to protect any rights of a person to prevent publication of information on the basis that it is private. The purpose of the order is to prevent prejudice to the administration of justice (which includes protection of the right to a fair trial) in any proceedings which are pending or imminent. Nevertheless, in the present case the orders made have had the incidental effect of postponing publication of information which the Claimant contends is also information in respect of which he has a reasonable expectation of privacy.
An order under s.4(2) cannot prohibit the publication indefinitely. It can only postpone publication for so long as it is necessary for the purpose of preventing an interference with the course of justice. It follows that there is no inconsistency in a person seeking the protection, simultaneously or sequentially, of s.4(2) and of a non-disclosure order in respect of the same information. However, counsel in this case, all of whom have great experience in this field, have no previous experience of an application for a non-disclosure order in respect of information which has been the subject of a s.4(2) order. The normal understanding is that when a s.4(2) expires (and they must all expire sooner or later) then the information will be publishable.
THE BACKGROUND TO THIS APPLICATION
On 22 March 2012 the Claimant was arrested on suspicion of having committed serious sexual offences upon children. A number of other persons suspected of related offences were arrested at or about the same time. On 24 March 2012 there was a hearing in the Magistrates Court of an application by the police concerning the Claimant's property. In the course of those proceedings an order was made under s.4(2). The effect of the Magistrates' order was to prohibit the disclosure of information which might identify the Claimant as the subject of pending proceedings "until such time as the [Claimant] is charged with a criminal offence…"
After March 2012 the police carried out investigations into the alleged offences. The Claimant was released on bail, and variations of his bail conditions were made from time to time. On 12 June 2012 there was a variation of the s.4(2) order made by the Magistrates, the details of which are not material. The Claimant was not identified by any complainant in the course of identification procedures conducted by the police. He was not charged with any offence.
During this period a number of others who had been arrested in the course of the same police operation were charged. The case against those defendants proceeded to a trial in the Central Criminal Court ("the CCC").
In the course of that trial, on 25 January 2013 the Claimant made an application in the CCC for a new order under s.4(2). One of the complainants had referred to a man whom she alleged to have committed an offence, and the name by which she referred to that man was a first name which is the same as the Claimant's first name. It is a first name which is very common, that is, it is the same as the first name of very many men. The purpose of this application was for an order postponing publication of information which might identify the Claimant as the person referred to by the complainant. HHJ Rook QC ("the Judge") made an order under s.4(2). The case for the Claimant was that he is not the person to whom the complainant was referring.
In the course of that application the fact of the Claimant's arrest, and the very serious offences of which he was suspected, were published in open court. But publication of them was prohibited for the time being by the s.4(2) order that the Judge made. Although the Claimant had not been charged, the order was sought (and made) on the basis that, following his arrest, proceedings against him were nevertheless pending or imminent. He was still on bail.
In anticipation of the hearing of the application heard on 25 January, and by a letter of that same date, Mr Jason Collie, the Assistant Editor of the Oxford Mail had written to the court on behalf of the Third Defendant (the publishers of the Oxford Mail, to whom I shall refer as the Oxford Mail). He set out objections to the proposed order. In that letter Mr Collie stated that he already knew that the Claimant had been arrested at the same time as most of those who were by then defendants to the proceedings in the CCC. He also knew that some of those who had been arrested had been released without charge. The Claimant had not been released, but Mr Collie submitted that since the Claimant had not been charged, and was not likely to be tried in the near future, there was not the risk of prejudice to the administration of justice in imminent proceedings which a court must find proved before the court can make an order under s.4(2).
On the same date the Claimant's counsel submitted a skeleton argument in which she set out the background and chronology. She referred to his arrest, to the nature of the matters of which he was suspected, to the Prosecution's Opening Note prepared for the trial of those suspects who had been charged, and to the extensive publicity that the police operation had attracted. She submitted that the Claimant was a person in respect of whom proceedings were pending or imminent and there was a risk to the administration of justice sufficient to justify the making of an order under s.4(2).
The Judge made the order which the Claimant asked for, postponing publication until such time as a decision was made whether or not to charge the Claimant. He gave reasons for making the order which are before me in the form of a note quoted in a skeleton argument submitted to the Court on a later application, made on 10 May. On 25 January 2013 the Judge found that there was a live investigation and, after considering the requirements of the section, he held that such an order was necessary.
On 28 January Mr Collie wrote to the Judge inviting him to make a variation to the wording of the Order he had made on 25 January, and the Judge did vary his Order on 4 February. The details are immaterial to what I have to decide.
The trial of the defendants lasted for some four months ending on 14 May 2013. Seven Defendants were convicted of numerous very serious sexual offences including rape and conspiracy to rape children, trafficking and child prostitution. Two defendants were acquitted.
On 7 May Mr Wilkinson, a reporter for the Oxford Mail, wrote an e-mail to the Claimant. He said that, as the trial was drawing to a close, his paper was considering running a story on the Claimant's arrest.
On 8 May The Times made three applications to the CCC. One of these applications was that the s.4(2) order made on 4 February be lifted. Mr Wolanski submitted that there were by then no proceedings pending against the Claimant. He had not been charged. In support of his submission that no charges were imminent, Mr Wolanski referred to a piece of information which the Claimant submits was confidential and must have been leaked to The Times by the police. Mr Wolanski also referred to the principle of open justice, and to the policy considerations upon which that principle is based. In...
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