PNM v Times Newspapers Ltd & Ors

An interim non-disclosure order will be granted only where the claimant is likely to establish at trial that publication should be restrained. The court must apply the established misuse of private information test, balancing the claimant’s Article 8 rights against freedom of expression and the principle of open justice. A report identifying an adult non-party to criminal proceedings may contribute to public debate and may encourage witnesses to come forward. The fact that publication may cause distress, reputational harm or adverse effects on family members does not necessarily outweigh that public interest. Restrictions imposed under Contempt of Court Act 1981 section 4(2) serve the separate purpose of protecting the administration of justice and cannot continue indefinitely once that purpose no longer applies.

The claimant, an adult who had been arrested on suspicion of serious sexual offences but released without charge, applied for an interim injunction restraining newspapers from identifying him. The proposed publication concerned information mentioned in open criminal proceedings involving other defendants and was said to create a risk of jigsaw identification and interference with the claimant’s private and family life.

Reporting restrictions had previously been imposed under section 4(2) of the Contempt of Court Act 1981. The claimant relied on misuse of private information and Article 8. The defendants relied on freedom of expression, open justice and the public interest in reporting criminal proceedings. The issue was whether the claimant was likely to succeed at trial and whether the competing rights justified interim relief.

1. The application for an interim non-disclosure order was dismissed. The court would hear further argument on the form of the order, including provisions relating to the evidence placed before the court.

2. Section 4(2) of the Contempt of Court Act 1981 protects the administration of justice in pending or imminent proceedings. It does not protect private information as such, and an order can last only for so long as necessary to prevent prejudice to the course of justice. Its expiry is therefore not inconsistent with a separate application for privacy relief.

3. Under section 12(2) of the Human Rights Act 1998, the claimant had to show that he was likely to establish at trial that publication should not be allowed. The applicable threshold was that explained in Cream Holdings Ltd v Banerjee [2005] 1 AC 253.

4. The court applied the principles in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42; [2011] 1 WLR 1645. Anonymity and reporting restrictions derogate from open justice and interfere with Article 10 rights. They require close scrutiny, necessity and consideration of less restrictive alternatives.

5. The court applied the two-stage misuse of private information inquiry summarised in K v News Group Newspapers [2011] EWCA Civ 439; [2011] 1 WLR 1827: reasonable expectation of privacy, followed by the ultimate proportionality balance between Articles 8 and 10. The court distinguished that decision’s context because it did not concern reporting of a criminal trial.

6. The court was bound by In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593. The claimant was an adult non-party whose position had been specifically addressed there. The evidence concerning possible harm to children did not justify a different balance.

7. There was the highest public interest in reporting allegations of child abuse and the administration of justice. The possibility that reporting might encourage witnesses to come forward, including witnesses able to rebut allegations, was material even without supporting police evidence: R v Legal Aid Board ex parte Kaim Todner (A firm) [1999] QB 966. The injunction would provide limited practical benefit and might encourage sinister inferences about the claimant.

8. The claimant had not shown a likelihood of success at trial. The court considered it unlikely that he could succeed, and held that the public interest in an identified report justified the resulting interference with his and his family’s private and family life. The judgment’s heading was to remain anonymised pending any application for permission to appeal.

This was a first-instance application for an interim non-disclosure order. The judgment records prior orders made in criminal proceedings, but no appellate history of the present application is stated.