The Court of Appeal has upheld the privacy rights of persons under criminal investigation in its first consideration of this issue since the landmark High Court decision in Sir Cliff Richard v BBC in 2018.

In 2013, a UK law enforcement body announced an ongoing criminal investigation into a major international business, X Ltd, for possible offences including bribery and corruption. In 2016, Bloomberg published two articles naming the claimant, who was the chief executive of a division of X Ltd, in connection with the investigation. One of the articles was based on the contents of a confidential Letter of Request from the UK law enforcement body seeking legal assistance from a foreign government.

ZXC applied for an interim injunction for misuse of private information, which was dismissed on the basis that Bloomberg’s Article 10 right (to freedom of expression) outweighed ZXC’s Article 8 right to a private life. ZXC nonetheless proceeded with his claim for damages and a final injunction.

At first instance, Mr Justice Nicklin held that a suspect does have a reasonable expectation of privacy in a criminal investigation up to the point of charge. Further, Bloomberg’s Article 10 rights did not outweigh ZXC’s Article 8 rights as there was no public interest justifying the information in the article, which simply reported on the confidential contents of the Letter of Request. Mr Justice Nicklin granted the claimant an injunction and awarded damages of £25,000.

The Court of Appeal dismissed Bloomberg’s appeal against this decision. Giving the leading judgment, Lord Justice Simon held that persons under criminal investigation (but not yet charged) do have a reasonable expectation of privacy because “the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty”.

Lord Justice Simon went on to say that the expectation of privacy is not dependent either on whether the person under investigation is a public figure or the nature of the crime. (ZXC was under investigation for corruption in business rather than a sexual crime, as in the Richard case.) The fact of being under criminal investigation in and of itself gives rise to a reasonable expectation of privacy. However, Lord Justice Simon did acknowledge that there may be cases where the public interest nature of the activity might extinguish the reasonable expectation of privacy.

Bloomberg has applied for permission to appeal to the Supreme Court.

This judgment has significant implications in terms of how the press will be able to report on persons under investigation by the police, albeit the manner of reporting on the police investigation itself remains unchanged. Media organisations have expressed concern about the decision, noting that some reporting of suspects has encouraged victims to come forward, in the process bringing further evidence leading to charges. But it is also the case that the reputations of several high-profile individuals have been damaged (and never fully restored) in recent years following media reports when they have been interviewed by the police but never charged. As Lord Justice Simon acknowledged, the human propensity is to assume there is no smoke without fire.

Either way, this judgment gives certainty on the current legal position pending any Supreme Court hearing.

 


 

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