Man arrested but not charged in child sex abuse probe loses Court of Appeal bid to prevent Times from naming him - Press Gazette

Man arrested but not charged in child sex abuse probe loses Court of Appeal bid to prevent Times from naming him

A man suspected of child sex abuse who was arrested but faced no charge has lost his battle in the Court of Appeal to use privacy laws to stop the press and media naming him.

Lawyers for the man, who can only be identified as PNM, challenged a High Court ruling by Mr Justice Tugendhat last October dismissing his application for a privacy injunction, also known as a non-disclosure order.

On Friday, three appeal judges unanimously agreed the High Court judge "reached a conclusion he was entitled to on the facts" and dismissed the appeal.

PNM is now expected to attempt to take his case to the Supreme Court for a final ruling. Meanwhile journalists remain banned from naming him.

PNM applied for a privacy order against the publishers of The Times and reporter Andrew Norfolk.

It was also against the publishers of the Oxford Mail and one of its journalist, Ben Wilkinson.

Appeal judge Lady Justice Sharp said PNM was one of a number of men arrested in March 2012 in connection with "Operation Bullfinch", a Thames Valley Police investigation into allegations of child sex grooming and prostitution in the Oxford area.

After his arrest on suspicion of committing serious sexual offences against children, he was released on bail and was never charged with any offence.

In July 2013, he was notified by the police that he was to be released without charge – "ie: that he was de-arrested" – but his case would be kept under review.

However nine other men were charged and tried at the Old Bailey in 2013. Seven were convicted of numerous very serious sexual offences and there was wide publicity, said the appeal judge.

The convictions included rape and conspiracy to rape children, trafficking and child prostitution.

An order had first been obtained by PNM under the Contempt of Court Act at Wycombe and Beaconsfield Magistrates' Court in March 2012. It prevented disclosure of police applications made to the court in relation to property belonging to him.

The order, continued by the same court the following month, was to run until PNM was charged with any criminal offence.

He applied for a further order under the Contempt of Court Act in January 2013 to Judge Rook QC at the Old Bailey trial of the nine men who had been charged. The application was to shield his identity when an alleged abuse victim referred to as "B" gave her evidence.

She had told the police that a man with the same first name as PNM had been one of her abusers, but she failed to pick him out an an identification parade, said the appeal judge.

PNM was not himself on trial but argued that proceedings against him were pending or imminent. B's evidence might implicate him as her abuser, and there was a substantial risk that his right to a fair trial would be jeopardised.

An order protecting his identity was made. B gave evidence that she had been abused by a man with the same first name as PNM's.

The appeal judge said there were three further hearings between May and September 2013 at which The Times and the Oxford Mail invited Judge Rook to lift the anonymity order under the Contempt of Court Act. In October, PNM made his application to Mr Justice Tugendhat for a privacy order.

Upholding the decision to refuse the application, the appeal judge said the "ordinary rule" was that the press could report "everything that takes place in open court" unless there were "unusual or exceptional circumstances".

If the courts were not sufficiently vigilant problems might arise, including a "widening pool" of those who might claim similar orders to avoid damaging publicity.

This could have a seriously "chilling effect" on the freedom of the press to report court proceedings, said the appeal judge.

A balancing act had to be carried out in each individual case between freedom of expression under Article 10 of the European Convention on Human Rights and an individual's right to protection for private and family life under Article 8 .

The appeal judge said she was unable to accept the argument put forward by Manuel Barca QC on behalf of PNM that Article 10 was overridden by his "presumption of innocence" under Article 8 because he was no longer under arrest, let alone charged.

She said most members of the public were able to distinguish between people who were "merely arrested" and someone who had been charged or convicted of a criminal offence.

"Once that is understood, it follows the effect of disclosing the fact of the appellant's arrest on his Article 8 rights is significantly more limited than Mr Barca contends."

The appeal judge said there was "some risk" that PNM's children "maybe subject to very unpleasant behaviour, even harassment" if his identity was disclosed.

But that did not tip the balance in favour of non-disclosure "given the strength of the Article 10 considerations in play".

The appeal judge concluded the High Court judge "reached a conclusion he was entitled to on the facts, in my view, and it is not a conclusion with which I would interfere".

Lord Justice Vos and Lord Dyson, Master of the Rolls, both agreed.



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