20 Jul 2017

“What’s in a name?”: The implications of the Supreme Court’s decision in PNM v Times Newspapers for those named by the SFO as “unindicted co-conspirators”

On Wednesday, 19 July, the Supreme Court published a judgment, Khuja (Appellant) v Times Newspapers Limited and others (Respondents) (formerly known as PNM (Appellant) v Times Newspapers Limited and others (Respondents))[1], the culmination of a five-year legal battle.  The Court examined the right to privacy and a family life of a suspect, who during the course of proceedings was known as PNM, who had not been charged with an offence and whose name was mentioned during the course of a trial (principally in relation to evidence concerning his innocence), and balanced it against the principle of open justice.

Despite concluding that there is a real risk that a member of the public may conclude PNM was guilty of sexual abuse (despite him never having been charged let along convicted) and that publication was likely to cause him serious injustice, this was not enough to tip the scales in favour of protecting his identity.  The Court acknowledged that because he had not been charged with any offence, he had no means of clearing his name in a criminal court, nor could he vindicate his reputation in civil proceedings.  However, the collateral damage that he (and other innocent individuals, including family members and his children) may suffer was not sufficient to outweigh what Lord Sumption described in his summary of the judgment as the cardinal principle of the administration of justice, that it is openly administered in public.  The press acts as the eyes and ears of the wider public in court and must be permitted to report what is stated.

While the PNM case concerned an individual suspected of involvement in a child sexual abuse ring, it is also interesting to examine the repercussions of this judgment for individuals implicated in financial crimes who are not charged with any offences yet face being named in criminal trials.  The Serious Fraud Office (SFO) are increasingly following the US practice of naming individuals as unindicted co-conspirators.  For example, it has been reported that on the original indictment against Tom Hayes, the banker convicted of manipulating the London Inter-Bank Offered Rate (LIBOR), there were as many as 22 unindicted co-conspirators, six of whom were in fact subsequently indicted and acquitted during a later trial. It is also reported that only one of the remaining 16 was even interviewed by the SFO.

Being named as an unindicted co-conspirator has extremely serious repercussions for the individuals involved.  Not only do they not get the opportunity to defend themselves and clear their name in public (similar to the position that PNM found himself in), they suffer irreparable damage to their reputations, potentially losing their jobs and livelihoods. By describing them as co-conspirators and alleging to the criminal standard that they are involved in the conspiracy, the SFO are clearly labelling them as guilty and not affording them the protection of the presumption of innocence.  This distinguishes the unindicted co-conspirator from PNM and constitutes a far greater infringement of their Article 8 rights.

Consideration was given in the Supreme Court’s judgment as to whether the public are capable of distinguishing suspicion from guilt.  Will members of the public believe there is “no smoke without fire” once an individual’s name is reported in connection with criminal offences, particularly when the offences concerned are legitimately of great public interest such as those concerning financial crime and sexual offences?  This appears so from a number of the comments underneath the Times’ article reporting their victory over PNM, described in their headline and the article as a multi-millionaire businessman.  The legitimate concerns raised in the dissenting judgments of Lord Kerr and Lord Wilson about the public’s understanding of the presumption of innocence must be all the more pressing in the case of unindicted co-conspirators, who are being labelled by the prosecuting authority themselves as criminals.

One solution the Supreme Court identifies is that of case management of the trial itself.  It found that it may in some cases be easier to justify managing a trial in a way which avoids the identification of those with a sufficient claim to anonymity, than restrictions on the reporting of proceedings in open court.   Courts retain the power which they have always possessed to allow evidence to be given in such a way that the identity of a witness or other matters are not more widely disclosed in open court, if the interests of justice require it.  The Supreme Court recognised section 11 of the Contempt of Court Act 1981, which permits a court to make ancillary orders preventing disclosure outside of court. These have consistently been found to be in accordance with Article 6 of the ECHR (the right to a fair trial) if they are necessary to protect the proper administration of justice.  Ciphers or initials may be used to protect an individual’s identity from being stated in open court.  Arrangements for the conduct of the hearing itself fall within the court’s general power to control its own proceedings. They may result in some information not being available to be reported.  The majority of the Supreme Court distinguished this from the need to impose reporting restrictions and found that once the identity of the individual is named in court and is there to be seen and heard but not reported, then this represents direct press censorship.  They accepted that had the trial been conducted so as to withhold PNM’s identity from the court, then the considerations urged by the dissenting judges Lord Kerr and Lord Wilson may have had considerable force.  Unfortunately for PNM, this was too late for him.

It is therefore of the utmost importance to any individual who believes they may be named as an unindicted co-conspirator to ensure that they persuade the trial judge to use their case management powers to protect their identity by way of a cipher in any forthcoming trial (similar to that used in the Financial Conduct Authority’s final notices against the banks which refer to Trader A, etc.).  There is no reason why the use of a cipher would necessarily prevent a fair trial from taking place.  This would avoid irreparable damage to the unindicted co-conspirator’s reputation and livelihood, while simultaneously enabling the open administration of justice to proceed unhindered.

[1] [2017] UKSC 49

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