A free press is a vital pillar of democracy – but what happens if unrestrained media reporting has the potential to undermine the fairness of criminal proceedings? The High Court addressed that issue in a guideline case concerning a man with a high public profile who was suspected of serious sexual offending.
The man was the subject of allegations of sexual misconduct in a workplace context. He had been arrested, but not yet charged, in relation to two of them and had been interviewed under caution in relation to a third. He denied all the allegations and sought an injunction after a broadcaster informed him of its intention to publish a news story concerning them in which he would be identified by name.
The broadcaster argued that there was a powerful public interest in publishing the story. Rather than concentrating on the continuing criminal investigation, it would focus on important matters of public debate, including online trolling of complainants in such cases and the alleged failure of the commercial sector in which the man worked adequately to address sexual misconduct issues.
In striking a balance between the broadcaster’s freedom of expression rights and the man’s right to a fair hearing, the Court noted that the case was unusual in that the broadcaster was proposing a departure from the general practice of the police and the mainstream media not to identify publicly individuals arrested in relation to serious criminal allegations before a charging decision is made.
The man’s identification by a respected broadcaster in connection with the criminal investigation would be bound to generate enormous publicity and would ignite a media fire that the broadcaster could not hope to control. He would inevitably be permanently disfigured in the public mind and naming him would be perceived as authorising unrestrained media debate, subject only to the anonymity of the complainants, which itself might be short-lived.
Having particular regard to the broadcaster’s freedom of expression rights, the Court was very reluctant to intervene. The broadcaster’s concern was to bring a legitimate and serious issue of general public concern to attention. However, the Court found that the broadcaster’s freedom to publish, and the public’s ‘right to know’, were, on the particular facts of the case, definitely outweighed by the powerful public interest in the fairness of criminal proceedings.
In granting a permanent injunction, the Court was sure that the proposed publication would amount to a contempt of court in that it would create a substantial risk that the course of justice would be seriously impeded or prejudiced. The order went no further than to restrain the broadcaster from publishing the story in a form which identified the man, or enabled him to be identified, as the subject of active criminal proceedings.