Mr Khuja was named in open court during the trial of other people. He had been arrested during the investigation and released without charge. When newspapers proposed to identify him in reports of the proceedings, he sought an interim injunction. The difficult question was how much weight to give the harm that identification could cause to a person who had never faced trial and had no opportunity there to answer what was said.
The arrest and the trial
The criminal trial concerned the organised sexual exploitation of children in Oxford. There was public concern about how the authorities had dealt with the allegations. Mr Khuja was not one of the defendants.
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A complainant had described a man with the same first name as Mr Khuja. She did not identify Mr Khuja at an identification parade. The police arrested him, released him on bail and later released him without charge. The case was kept under review.
During the trial a police officer gave evidence about the failure to identify Mr Khuja. Both prosecution and defence counsel subsequently used his full name in their closing speeches. What had been said was therefore part of proceedings that members of the public could attend. There had been no finding of guilt against him.
From a temporary reporting ban to a privacy claim
Shortly after the arrest, magistrates made an order under section 4(2) of the Contempt of Court Act 1981. That provision allows publication of a report of public proceedings to be postponed where necessary to avoid a substantial risk of prejudice to pending or imminent proceedings. The order prohibited identification of the appellant as the subject of pending proceedings until he was charged.
The trial judge subsequently postponed reporting information that might identify Mr Khuja. Once the police decided not to charge him, the judge indicated that the postponement should end. Its original purpose had been to protect a possible future trial. Mr Khuja needed a different legal basis if the newspapers were to remain unable to name him.
Mr Khuja brought a privacy claim and asked for an interim injunction. The Times and the Oxford Mail wished to report matters raised in the public proceedings. Under section 12(3) of the Human Rights Act 1998, a court could restrain publication before trial only if satisfied that the claimant was likely to establish at trial that publication should be prohibited.
Tugendhat J recognised that some readers might equate suspicion with guilt and that identification could expose the family to hostility. He nevertheless concluded that the claim was unlikely to succeed, given the public interest in the investigation, the trial and the reporting restrictions themselves. The Court of Appeal upheld his decision.
Why the majority refused the injunction
Lord Sumption gave the majority judgment. Open justice allows people to see how courts exercise their powers, including those who can follow a trial only through news reports. Preventing journalists from reporting something already said in open court therefore calls for particularly strong justification.
The court had to balance article 8, which protects private and family life, against article 10, which protects freedom of expression. Neither right had automatic priority. The question was whether preventing identification in reports of these particular proceedings was proportionate.
The majority did not assume that all readers would distinguish suspicion from guilt. Lord Sumption accepted a real risk that some would draw a damaging inference. He nevertheless considered that the judge had been entitled to refuse an injunction after weighing that risk.
Mr Khuja was asking to restrict reports of a name already used in open court. The majority considered that he had no reasonable expectation of privacy in what had been said there. The likely effect on his family and community relationships still engaged article 8. In the majority’s view, that consequence did not justify restraining fair reports of proceedings in which the public had a substantial interest.
The majority confined its decision to the application made before publication. It left open what remedies might be available if a publication later infringed Mr Khuja’s rights. It also distinguished an application made during a trial to protect someone’s identity before it is disclosed.
The dissent
Lord Kerr and Lord Wilson would have allowed the appeal. They considered that the judge had placed too much weight on what readers could be expected to understand. A reader might know that the law presumes innocence and still conclude that someone arrested was guilty. The dissenters also emphasised the circumstances in which Mr Khuja’s name had emerged, including his application for temporary protection and the evidence that he had not been identified. In their assessment, the likely harm to him and his family made it probable that he would establish his right to an injunction at trial.
Verdict: The Supreme Court dismissed Mr Khuja’s appeal by five votes to two. The newspapers could identify him in reporting the public proceedings. The ruling concerned an interim injunction and made no finding of wrongdoing by Mr Khuja.
