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26.09.14

Court of Appeal rules that there should be no privacy injunction where Appellant arrested on suspicion of sex offences

The Court of Appeal in PNM and Times Newspapers Limited  & Ors [2014] EWCA Civ 1132 has upheld the decision of the High Court not to grant a non-disclosure order in a case where the Appellant was arrested but not charged with serious sexual offences against children.

The Court was considering an appeal against the decision of Mr Justice Tugendhat, sitting at the High Court, where he refused to grant an interim non-disclosure order on the basis that the Appellant had not established that he was more likely than not to succeed at trial.  That decision can be accessed here 

The Appellant had sought the order to prevent publication of the fact that, amongst other matters, he had been arrested on 22 March 2013 as part of Operation Bullfinch, a police investigation into child grooming and prostitution in and around Oxford.   The Appellant was not charged of any offence under that investigation and was advised on 25 July 2013 that he would be released without charge although his case would be kept under review.  There was, however, a subsequent trial at the Central Criminal Court involving nine defendants who were charged under the same police operation (the case of R v Jamil & Ors).  Seven of the defendants involved in that trial were convicted of serious offences including child trafficking and rape.  The case received widespread publicity in both the local and national press and the Appellant’s name was disclosed in the course of those proceedings.  There was, however, an order under section 4(2) of the Contempt of Court Act 1981 in force which prevented the reporting of those matters and the Respondants had sought to have that order lifted.

The Appellant had, in anticipation of the s.4(2) Order being lifted, applied for a non-disclosure order in the High Court and that application was heard by Mr Justice Tugendhat on 22 October 2013.  The Appellant submitted that the reporting of the information, which would identify him as someone who had been arrested in connection with the police investigation, would constitute the misuse of private information.  He provided evidence of the disproportionate interference with his rights under Article 8 of the European Convention on Human Rights in two witness statements and specifically highlighted the potential adverse effect on his children and other children within his family if the information were to be published.  Mr Justice Tugendhat refused the application and permission to appeal to the Court of Appeal was given.

On 1 August 2014, the Court of Appeal upheld the judgment of Mr Justice Tugendhat stating that the conclusion he reached was one that he was entitled to reach after careful consideration of the facts and legal principles.   At paragraph 44 of the Court of Appeal judgment, Lady Justice Sharp stated:-

“As is clear from his judgment, the judge had full regard to the effect of the disclosure of the appellant’s identity on the children, nothing that there was ‘some risk’ that the children ‘may be subject to very unpleasant behaviour, even harassment.’ The judge concluded on the facts, that giving particular weight to the evidence of the children would not have tipped the balance in favour of the application, given the strength of the article 10 considerations in play; in other words, on the evidence before him it made no difference.” 

The proceedings remain anonymised and the s.4(2) order remains in place until the Appellant has pursued an application for permission to appeal or until further order.  For a copy of the full judgment, click here


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