PNM v Times Newspapers Ltd and Ors
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lord Justice Vos,The Master of the Rolls |
| Judgment Date | 01 August 2014 |
| Neutral Citation | [2014] EWCA Civ 1132 |
| Docket Number | Case No: A2/2013/3242 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 August 2014 |
[2014] EWCA Civ 1132
The Master of the Rolls
Lady Justice Sharp
and
Lord Justice Vos
Case No: A2/2013/3242
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Queen's Bench Division
Tugendhat J
Royal Courts of Justice
Strand, London, WC2A 2LL
Manuel Barca QC and Hannah Ready (instructed by Collyer Bristow) for the Appellant
Adam Wolanski (instructed by Times Newspapers Legal Department) for the Respondents
Hearing date: 18 June 2014
Introduction
On 22 October 2013 Tugendhat J refused an application for an interim non disclosure order (a privacy injunction) by the appellant, described in these proceedings as PNM. He is an individual living in the Oxfordshire area. The application was made on 15 October 2013 against the publishers of The Times (TNL) and one of its senior journalists, Andrew Norfolk, and against the publishers of a local newspaper, the Oxford Mail, and one of its journalists, Ben Wilkinson.
The non-disclosure order sought to prevent the disclosure of a number of categories of information. Essentially, however, the appellant wanted to prevent publication of the fact of his arrest on 22 March 2012 on suspicion of committing serious sexual offences against children and associated information, which would lead to his identification as the person so arrested ('the information') because of his fear of the damage that such publications may cause to him and members of his family, including his children.
The information had been referred to on a number of occasions in open court in earlier criminal proceedings to which the appellant was not a party, but publication of it had been temporarily postponed by orders made at the appellant's request under section 4(2) of the Contempt of Court Act 1981. 1 The application for a privacy injunction was made in the expectation that those orders would be lifted.
Factual background
I can summarise the background which led to the application, because the relevant material has been comprehensively dealt with in the judgment below, albeit the judge omitted some of the detail so that his judgment could be a public one whatever the ultimate outcome, in accordance with the guidance given in JIH v News Group Newspapers Limited [2011] EWCA Civ 42, at paragraph 21 (9).
The appellant was one of a number of men arrested in March 2012 in connection with 'Operation Bullfinch' a Thames Valley Police investigation into allegations of child sex grooming/prostitution in the Oxford area. After his arrest the appellant was released on bail. I should say at the outset that the appellant has never been charged with any offence as a result of that investigation, and on 25 July 2013, he was notified by Thames Valley Police that he was to be released without charge i.e. that he was 'de-arrested', but that his case would be kept under review.
However, nine men were charged, and their trial R v Jamil and ors ('the criminal trial') took place over the course of four months at the Central Criminal Court before HH Judge Rook QC between January and May 2013. On 14 May 2013, seven of the defendants were convicted of numerous very serious sexual offences, including rape and conspiracy to rape children, trafficking and child prostitution. Both the criminal
trial and the investigation which led up to it have been the subject of widespread publicity in the media, both nationally, and at a local level in the Oxford area.A section 4(2) order was first imposed following a request by the appellant's representatives, at a hearing at the Wycombe and Beaconsfield Magistrates' Court on 24 March 2012. That order was continued at the same court, at a further hearing on 12 June 2012. It prohibited the disclosure of details of the applications made to the court by Thames Valley Police (which concerned certain of the appellant's property) until the appellant was charged with any criminal offence relating to the investigation. It seems that the appellant was named in open court on the second occasion, but not the first, and he was also named in the order. Mr Wilkinson was present on the first occasion, and TNL were represented on the second occasion.
The appellant was not a party to or witness at the criminal trial. But during the course of the investigation leading to it, one of the complainants who gave evidence at the criminal trial, who I shall refer to as B, told the police that a man with the same first name as the appellant had been one of her abusers. She subsequently failed to pick the appellant out at an identification procedure.
The appellant applied for a further section 4(2) Order on 25 January 2013, shortly before B was due to give her evidence, on the ground that her evidence might implicate him as her abuser, and there would be a substantial risk of prejudice to the administration of justice (his right to a fair trial) if she did so. At that stage he argued the matter on the basis that proceedings against him were active (pending or imminent). The Oxford Mail opposed the application. Judge Rook made a section 4(2) order covering reports of the criminal trial ('the Order'). As subsequently varied by him on 4 February 2013, the Order prohibited the publication of any report " which refers to evidence presented in these proceedings against Jamil & Others which may identify or tend to identify, by any means [the appellant] until further order." In the event B said in her evidence that she had been abused by a particular man, referring to him by a first name, which was the same as the appellant's.
It is common ground that after the Order was made, there were references to the information before the jury. The appellant's full name was referred to by a police officer who said that B had failed to pick the appellant out at a police identification procedure; and it was mentioned in the course of cross-examination, in closing speeches and in the summing-up.
There were then three further hearings relating to the Order: on 8 May 2013, 15 May 2013 and 24 September 2013 at which the respondents (the Oxford Mail at the first hearing, and the respondents jointly after that) invited Judge Rook to lift the Order.
At each of those hearings, as at the first such hearing, the information was referred to in open court, in submissions, oral and written, and in the rulings made by Judge Rook. His last ruling after the September hearing was circulated to the parties by email on the 14 October 2013 but its formal handing down was deferred to await the outcome of the application for the privacy injunction (though the ruling was seen by Tugendhat J and has been seen by us).
The application for a privacy injunction
Evidence relevant to the application was put before the judge by the appellant and the respondents. No Particulars of Claim had yet been formulated, but the appellant based his claim squarely on the tort of misuse of private information, the relevant principles of which are summarised in K v News Group Newspapers [2011] EWCA Civ 439; [2011] 1 WLR 1827 at paragraph 10. The application was an interim one, affecting freedom of expression. The relief asked for could not be granted therefore unless the judge was satisfied that the appellant was likely to succeed in establishing at trial that publication should not be allowed: see section 12(2) of the Human Rights Act 1998; and see further, as to the flexibility of the threshold test of likelihood, Cream Holdings Ltd v Banerjee [2005] 1 AC 253 at paragraph 22.
The appellant argued and it was not disputed by the respondents, that publication of the information suggesting he was suspected of a serious sexual offence — including otherwise anodyne information which would, when pieced together, lead to his identification by jigsaw effect — would engage his rights to a private and family life under article 8 2 of the ECHR. In two witness statements the appellant described the serious personal and financial consequences that he feared the publication of the information would have for him and his family, particularly his young children and those of family members (who I shall refer to compendiously as "the children"). This evidence is described in more detail in the judgment below at paragraphs 49 and 50. His principal concern was that if the information was published, he would be regarded as guilty by the public, even though he had not been charged with, still less prosecuted for any offence, and about the potentially distressing and damaging consequences this might have for his immediate and wider family, including the children.
The respondents on the other hand submitted that their article 10 3 rights and those of the public were engaged and whatever such expectations of privacy the appellant might have enjoyed were overridden when balanced against the principle of open justice recognised in article 6 4 (a public hearing) and article 8(2) of the ECHR. In a
witness statement from Michael Smith for example, Head of News at TNL, reference was made to the extensive coverage the paper had already given to the police investigation in question, and other similar investigations; and that its interest was not confined to the legal proceedings in question but to the wider legal issues arising from them: see further, paragraphs 53 to 59 of the judgment below. The respondents said they wanted to report the court proceedings concerning the imposition and lifting of the Order. They said there would be considerable public interest in such a report about the...To continue reading
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