Media coverage of criminal trials will be handicapped if a man named in evidence is allowed anonymity, the Supreme Court was told yesterday.
Gavin Millar, QC, told the justices that it would mean that any newspaper that identified a suspect named in evidence would run the risk of being sued.
“Reporters would be at risk of self-censoring reports of a criminal trial to avoid being sued for breach of privacy,” he said. “It would chill court reporting dramatically.”
The QC was arguing the case for The Times and Newsquest, publishers of the Oxford Mail, and a journalist on each paper, Andrew Norfolk and Ben Wilkinson, who are challenging the appeal for anonymity by a man named in a sex grooming trial.
Mr Millar said the court was being asked to create an exception to the open justice principle, which allows the reporting of evidence heard in open court, by granting anonymity to the man, known only as PNM, because to identify him as a suspect in a child-sex case would potentially subject him to public vilification.
He warned that if the appeal succeeded, the only suspects likely to demand anonymity at future trials were people wealthy enough to send lawyers to court to threaten legal action against any newspaper that identified them.
PNM wants to prevent the media publicising that he was arrested in 2012 in connection with a major investigation into child grooming and prostitution in the Oxford area.
The investigation ended with seven convictions after a trial in 2013. PNM was released without charge and was not a defendant in the trial but his name emerged in evidence. On Tuesday counsel for PNM said that the media was invoking the open justice principle as a “legal Trojan horse” to put him in the frame as a paedophile suspect.
Manuel Barca, QC, for PNM, told seven Supreme Court justices that the The Times and the Oxford Mail were invoking the principle of open justice as a “contrivance”. They were using it to justify publication of information that would breach the right to privacy, he added. The newspapers’ aim was to put the man “in the frame” as a suspect at the heart of a sex ring that had been operating in the Oxford area.
They were using the principle that the press should be allowed to report what was said in open court as a device to expose him, the QC said.
In the balancing exercise between an individual’s right to privacy and the right of the press to freedom of expression, the courts should make “greater allowance” for the “taint of guilt” attached, in the eyes of some people, to those identified as suspects, particularly in relation to sexual offences against children, Mr Barca added.
He argued that appeal judges, who have already ruled that PNM can be named, were wrong to say newspapers could identify him. They had not taken account of the “important shift” in attitudes concerning the rights of individuals who had simply been arrested, the QC added.
The two-day hearing before the Supreme Court justices comes as pressure mounts to give anonymity to those under investigation or who are arrested before any charge is brought.
At the man’s request, an order was made during the trial under section 4(2) of the Contempt of Court Act 1981 temporarily preventing the publication of identifying details. He was then under arrest and on bail. The order was to avoid prejudicing his right to a fair trial should he be charged.
When he was subsequently released from bail without charge and the order was about to be discharged, he applied for a privacy injunction. He argued that he would be regarded as guilty even though he had not been charged or prosecuted for any offence.
The newspapers argued that the principle of open justice overrode any rights to privacy. They said that they wished to name PNM in the context of reports of his attempt to gain privacy orders.
They have already won in the High Court and Court of Appeal. In October 2013, Mr Justice Tugendhat ruled that there was enough public interest in publishing a report of the court proceedings that identified the appellant.
When the case went to the Court of Appeal, Lady Justice Sharp said that the ordinary rule that the press may report everything that takes place in open court “can only be displaced by unusual or exceptional circumstances”.
The man claimed in the Court of Appeal that if he was named there was a serious risk that he would be “stigmatised as a suspected paedophile” because he “would be regarded as guilty by the public, even though he had not been charged with, still less prosecuted for, any offence”.