The End of Innocence: Open Justice, Free Speech and Privacy in the Modern Constitution – Khuja (formerly PNM) v Times Newspapers Limited
| Author | Robert Craig |
| Published date | 01 January 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12391 |
| Date | 01 January 2019 |
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CASES
The End of Innocence: Open Justice, Free Speech and
Privacy in the Modern Constitution – Khuja (formerly
PNM) vTimes Newspapers Limited
Robert Craig∗
This case note explores the issue of open justice considered by Khuja (formerly PNM) vTimes
Newspapers Limited in the Supreme Court and argues that the current law is confused and
incoherent. Far from settling the debate, it is suggested that the decision further undermines
some of the key assumptions underpinning the current approach, especially in the light of the
compelling and humane minority judgment. This leaves the area ripe for reconsideration in
general terms. This note challenges many of the formulaic slogans and rhetoric in previous case
law as well as suggesting that the meaning of open justice has been lost in current discourse.
After summarising the facts, this note sets out the majority and minor ity judgments, before
analysing some of the conceptual difficulties raised – particularly those of open justice, privacy,
presumption of innocence and freedom of speech.
INTRODUCTION
The long running judicial and academic debate in the UK over the meaning
of open justice has resulted in multiple appellate decisions in recent years. In
Khuja (formerly PNM) vTimes Newspapers Limited (Khuja), the judicial percep-
tion of tension between privacy and the orthodox definition of open justice
was confronted once again.1This note will seek to challenge that orthodox
definition.
Mr Khuja sought an injunction to protect his anonymity after he was named
by a police officer, counsel and a judge in open court in connection with an
extremely high profile criminal case involving the sexual assault of minors in
Oxford. Mr Khuja had been arrested in connection with the case but never
charged or prosecuted. Nine other men were prosecuted and seven convicted.
Mr Justice Tugendhat in the High Court, a unanimous Court of Appeal –
including the Master of the Rolls – and a majority (5-2) of the Supreme Court
all agreed that Mr Khuja could not prevent the publication of his name and the
details of his arrest.
This case note explores the issue of open justice considered in the case
and argues that the current law is confused and incoherent. Far from settling
the debate, it is suggested that the decision further undermines some of the
∗Durham University. The author would like to thank Gavin Phillipson, Paul Wragg, Peter Ramsay,
Hugh Tomlinson and the anonymous reviewers for their helpful comments on a previous draft. The
usual disclaimer applies.
1Khuja (formerly PNM) vTimes Newspapers Limited [2017] UKSC 49.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(1) MLR 129–158
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
The End of Innocence: Khuja (Formerly PNM) vTimes Newspapers Limited
key assumptions underpinning the current approach, especially in light of
the compelling and humane minority judgment. This leaves the area ripe
for further reconsideration in the future. This note challenges some of the
overblown rhetoric and empty slogans in previous case law on open justice.
It also suggests that the meaning of this key concept has been obscured in
current discourse. After summarising the facts, this note sets out the major ity
and minority judgments before analysing some of the conceptual difficulties
raised – particularly those of open justice, privacy and freedom of speech.
Background and facts
The harrowing and highly publicised trial of an Oxfordshire gang convicted of
the long-term grooming, exploitation and rape of underage girls came to an
end in the Old Bailey on 14 May 2013.2Considerable criticism was levelled at
local authority procedures and practices, as well as social services and the police;
some of that criticism was frankly acknowledged to be justified.3Mr Khuja was
arrested during the initial investigation. At a preliminary hearing, a magistrate’s
order prevented Mr Khuja being named until and unless he was charged with
an offence. On 25 July 2013, Mr Khuja was told that he was no longer under
arrest and it was this development that caused the newspapers to seek the lifting
of the anonymity order on 25 September 2013. Mr Khuja immediately applied
to the High Court to prevent the publication of any aspect of his involvement
in the legal proceedings. The High Court refused the injunction sought and
allowed publication but the original order was continued pending the final
determination of Mr Khuja’s application in the Supreme Court.
During the Old Bailey trial, a complainant stated she had been repeatedly
raped, over a six month period, by a mystery assailant whose first name she
identified as ‘Tariq’. As it happens, this is also the first name of Mr Khuja.
The High Court judge in this application, Mr Justice Tugendhat, pointed out
that this name is ‘very common’.4After giving a detailed description, the
complainant not only did not pick out Mr Khuja at an identification parade,
she positively stated that she did not think her assailant was one of the twelve
men in the line-up that included Mr Khuja. This is a crucial point that will be
considered further below.
THE SUPREME COURT DECISION
Lord Sumption gave the lead judgment for the majority, which included Lord
Neuberger PSC, Lady Hale DPSC, Lord Reed and Lord Clarke. Lords Kerr
and Wilson gave a joint dissenting judgment. After setting out the facts, the
majority mapped out the existing legal framework and applied it to the present
2 Bullfinch trial: the verdicts, pictures and reaction at http://www.oxfordtimes.co.uk/news/
10418476.Bullfinch_trial__The_verdicts/ (last visited 23 November 2018).
3 Bullfinch: Statement from Police and Crime Commissioner Anthony Stansfeld at https://
www.oxfordmail.co.uk/news/bullfinch/10418902.Bullfinch__Statement_from_Police_and_
Crime_Commissioner_Anthony_Stansfeld/ (last accessed 23 November 2018).
4Khuja (formerly PNM) vTimes Newspapers Limited [2013] EWHC 3177 at [9].
130 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(1) MLR 129–158
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