The Supreme Court finally handed down judgment in the case of Khuja v Times Newspapers in late July, in which the scales tipped in favour of the media's freedom of expression over Mr Khuja's right to private and family life.
Mr Tariq Khuja, a prominent Oxford businessman, was arrested in 2012 in connection with the Thames Valley Police investigation into child sex grooming and prostitution, otherwise known as Operation Bullfinch. One of the young female victims said that she had been abused by a man named Tariq, which in turn led to Mr Tariq Khuja’s arrest. The same girl later failed to pick out Mr Khuja from an identity parade, and he was thereafter released and never charged with an offence.
Upon Mr Khuja’s release in July 2013, the Oxford Mail sought to lift an injunction preventing the use of Mr Khuja’s name in reporting the case, principally on the basis of open justice. When the judge issued a draft ruling to lift the injunction, Mr Khuja applied for a further injunction restraining any publication that would connect him to Operation Bullfinch. The courts upheld the protection of open justice all the way to the Supreme Court.
Open justice enables public scrutiny of the judicial system, something that is significantly facilitated by the media. Open justice is not, however, an absolute concept of English Law, and in particular, cases involving national security and the protection of human rights will often not be exposed to the public at large. The boundaries of acceptable reporting are established by the laws of contempt, defamation and privacy, and it is on the latter where the Khuja case centred.
In Mr Khuja’s appeal, the ultimate trade-off between Article 8 (right to private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights was made; a decision to be made weighing up the potential abuse and harassment that could be caused to him and his family, versus the erosion of open justice.
The power of the press is such that once a name becomes embroiled in a matter, it often becomes the centre of attention: that is to say, “mud sticks”. The dissenting judges (Lords Kerr and Wilson) commented that “arrest may generally be associated with guilt” and therefore it cannot be presumed that the public will maintain an accused’s innocence until proven guilty. So, in the words of Shakespeare, what’s in a name? What were the grounds upon which the court was persuaded that publication in this case was justified, even when balanced against the potential harm to Mr Khuja as well as to his family?
The Times and Oxford Mail fought to prevent the injunction on the basis that publication of Mr Khuja’s name would provide a more engaging piece for its readers and – importantly –a more complete picture of the trial that could enhance the proper administration of justice. It is a matter of editorial judgment as to whether the publication of a name is necessary to accurately report judicial proceedings, and this is something that has been repeatedly accepted by the court. The curtailing of editorial independence is a drastic measure in a liberal society, and one that should surely be avoided, in particular where there could be no real expectation of privacy and there was and is a very real public interest. Lord Sumption made clear that it was a crucial part of the judgment that the injunction would have served no real purpose in a case of such notoriety, in which Mr Khuja’s identity had already been mentioned at public trial and had become widely known. He laid further weight against the fact that the underlying matter of child sex abuse was of the utmost public concern, and therefore the way in which the case was investigated and brought to trial was entirely in the public interest.
Whilst this decision may appear to be damaging to the rights of an innocent individual, it serves as a useful reminder of the very delicate considerations at play in weighing up Article 8 in matters of press freedom. It should not be forgotten that, if the media were to misconstrue Mr Khuja’s role in the trial/underlying offences, then he would of course have remedies available to him in the law of defamation – and the courts are highly protective over individuals falsely reported as having committed serious crimes.
As a parting thought, clever claimant lawyers might also be able to see a way through the Data Protection Act to recover damages for publication of Mr Khuja’s name (based on, for example, a complaint that the use of his name was excessive/disproportionate to the purpose of the article). In this regard, it seems likely that the Supreme Court’s reasoning would shield the newspapers in question from liability for damages; however, the precise balancing act to be applied between use of personal data and freedom of expression in data protection-based actions remains relatively untested and there is currently no guarantee that an identical approach would be taken if Mr Khuja were to pursue such a claim.
This article was written by Jonathan Robb (Trainee) and Bryony Hurst (Partner) from our London office.