PNM v Times Newspapers Ltd and Others: SC 19 Jul 2017

No anonymity for investigation suspect

The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting publication of his name and involvement in the inquiry.
Held: (Kerr and Wilson LL dissenting) The appeal failed. PNM did not seek that the trial should be conducted in such a way as to protect his identity, but to restrict its reporting, however fair or accurate, of certain matters which were discussed at a public trial. These were not matters in respect of which PNM can have had any reasonable expectation of privacy. There would be an undoubted and possible serious effect on PNM’s family: ‘But whether that be so or not, the impact on PNM’s family life of what was said about him at the trial is no different in kind from the impact of many disagreeable statements which may be made about individuals at a high profile criminal trial. A defendant at such a trial may be acquitted, possibly on an issue of admissibility, after bruising disclosures have been made about him at the trial. Within the limits of professional propriety, a witness may have his integrity attacked in cross-examination. He may be accused by other witnesses of lying or even of having committed the offence himself. All of these matters may be exposed in public under the cloak of the absolute immunity of counsel and witnesses from civil liability, and reported under the protection of the absolute privilege from liability for defamation for fair, accurate and contemporaneous publication. The immunity and the privilege reflect the law’s conviction that the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public.’
Lords Kerr and Wilson said that the asserted prresumption that members of the public would understand that a person arrested but not charged should be presumed innocent, was without authority and: ‘against the public interest that the proposed piece about section 4(2) would be considerably more engaging and meaningful, this court needed first to recognise the risk to PNM that his identification would generate a widespread belief not only that he was guilty of crimes which understandably attract an extreme degree of public outrage but also that he had so far evaded punishment for them; and then, in consequence, to balance the risk of profound harm to the reputational, social, emotional and even physical aspects of his private and family life, notwithstanding that he is presumed by the law to be innocent and has had no opportunity to address in public the offences of which at one time the police suspected him to be guilty.
At the end of this only interim inquiry, our view is that the scales have descended heavily in favour of PNM’s rights under article 8; that he was likely to have established his right to an injunction against identification at full trial; and, with great respect to our colleagues, that they are wrong today to be dismissing his appeal.’
Lord Sumption said: ‘A party is entitled to invoke the right of privacy to protect his reputation but, as I have explained, there is no reasonable expectation of privacy in relation to proceedings in open court. The only claim available to PNM is based on the adverse impact on his family life which will follow indirectly from the damage to his reputation. It is clear that in an action for defamation no injunction would issue to prevent the publication of a fair and accurate report of what was said about PNM in the proceedings. It would be both privileged and justified. In the context of the publication of proceedings in open court, it would be incoherent for the law to refuse an injunction to prevent damage to PNM’s reputation directly, while granting it to prevent the collateral impact on his family life in precisely the same circumstances.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed
[2017] UKSC 49, [2017] WLR(D) 490, [2017] EMLR 29, [2017] 3 WLR 351, UKSC 2014/0270, [2019] AC 161, [2017] WLR(D) 673, [2018] 1 Cr App R 1
Bailii, Bailii Summary, WLRD (490), SC, SC Summary, SC Video Summary, SC Video 17/01/2017 am, SC Video 17/01/2017 pm, SC Video 18/01/2017 am, WLRD
Contempt of Court Act 1981 4(2)
England and Wales
Citing:
At first instancePNM v Times Newspapers Ltd and Others QBD 22-Oct-2013
The claimant had been arrested on allegations of serious child sex abuse. The court now considered an application for a continuation or cancellation of an interim non-disclosure order.
Held: The application for a non-disclosure order was . .
Appeal fromPNM v Times Newspapers Ltd and Others CA 1-Aug-2014
The claimant sought a privacy order after being accused of historical serious sexual offences against children.
Held: The judge had properly acted within the range of his discretion, and the appeal was dismissed. The judgment would however . .
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedB v The United Kingdom; P v The United Kingdom ECHR 24-Apr-2001
The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were . .
CitedRegina v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney-General CA 1974
In a blackmail case, the court ordered non publication of the names of the complainants. Thinking they were not bound, the defendants published the names.
Held: The publishers and Mr Michael Foot were held to be in contempt of court in . .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedDoorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
CitedV v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
CitedIn re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
CitedIn re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
CitedEdmonton Journal v Alberta (Attorney General) 1989
Supreme Court of Canada – The court made orders for anonymisation of parties to proceedings to protect them from from embarrassment or humiliation.
Wilson J said: ‘It is difficult to imagine a guaranteed right more important to a democratic . .
CitedCampbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
CitedIndependent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions PC 8-Jun-2004
PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether . .
CitedVon Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
CitedTrinity Mirror and Others, Regina (on the Application Of) v Croydon Crown Court CACD 1-Feb-2008
The defendant had pleaded guilty in the Crown Court to 20 counts of making or possessing child pornography. No direction was made for withholding the defendant’s identity in court, but the Crown Court made an order in the interest of the defendant’s . .
CitedAttorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedRegina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
CitedBG and Others v HMTQ 7-Oct-2002
Supreme Court of British Columbia. The Court prohibited, until the conclusion of the proceedings, identification of school staff accused of abusing boys in an action brought by them in later life against the school.
Held: The protection of . .
CitedBG and Others v HMTQ in Right of BC 22-Jun-2004
Court of Appeal fro British Columbia – Teachers had been accused of historical sexual abuse. An order was made for their anonymisation pending conclusion of those civil proceedings. The proceedings had now been dismissed. The Court now considered . .
CitedRegina v Henry 26-Feb-2009
British Columbia – Court of Appeal – The Court had granted permission to Mr Henry to reopen his appeal against conviction for offences of sexual assault. His case was to be that Mr X, who had already been convicted of other assaults, had instead . .
CitedRotherham Metropolitan Borough Council v M and Others FC 25-Oct-2016
Rotherham had made a teenage girl a ward of court and had obtained interim injunctions that four named men should not associate with her. It alleged that they had been sexually exploiting her. None of the four came to be charged with any offence but . .

Cited by:
CitedNT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
CitedRichard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
CitedSarker, Regina v CACD 13-Jun-2018
The defendant was to face trial under the 2006 Act. He applied for an order under section 4(2) of the 1981 Act postponing the reporting of the proceedings on the grounds that knowledge by the jury of the inquiry and police investigation would be . .
CitedZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Information, Litigation Practice

Updated: 01 November 2021; Ref: scu.590447