22 Feb SUPREME COURT UPHOLDS EXPECTATION OF PRIVACY IN PRE-CHARGE INVESTIGATIONS

The Supreme Court has upheld the findings of Mr Justice Nicklin and the Court of Appeal, that, as a legitimate starting point, prior to charge, an individual has a reasonable expectation of privacy in information relating to a criminal investigation into their activities.

‘ZXC’ was chief executive of a division of ‘X Ltd’, a company which was under criminal investigation by a UK Law Enforcement Body (UKLEB) focusing on allegations of corruption, bribery and fraud. The UKLEB sent a Letter of Request to a foreign government seeking assistance in relation to the investigation.

Bloomberg obtained a copy of the Letter of Request and, in 2016, published an article concerning its contents and details about the investigation – including that ZXC had been interviewed by the UKLEB. The UKLEB quickly wrote to Bloomberg to express its displeasure on confidentiality grounds.

ZXC then sued on the basis of misuse of private information, breach of confidence and breach of the Data Protection Act 1998 and applied for interlocutory injunctive relief. This interim relief was refused by Garnham J in February 2017, although he had not been provided with a copy of the Letter of Request. After a 4-day trial for misuse of private information (the other causes of action falling away), Nicklin J found in favour of ZXC, placing weight on the confidential nature of the Letter of Request. Applying the 2-stage test, he held that: (1) the information had been private, and (2) when weighed against Bloomberg’s Article 10 rights, the balance came down in favour of ZXC’s Article 8 right. He awarded damages of £25,000.

Bloomberg’s appeal against Nicklin J’s decision was dismissed by the Court of Appeal. Bloomberg appealed again to the Supreme Court.

Unanimously dismissing Bloomberg’s appeal, the Supreme Court held, as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation and that in this case ZXC had such a reasonable expectation of privacy. Publication of such information would have a negative effect on an innocent person’s reputation which was not, as Bloomberg argued, safeguarded by the presumption of innocence.

Further, the Judge was right to take into account the confidentiality of the Letter of Request as a relevant factor, as the torts will often overlap, such that information which is confidential is also likely to be private. It was also held that there were no grounds for intervening with the balancing exercise conducted by Nicklin J.

This case clearly supports the proposition that, as a starting point, a person has a reasonable expectation of privacy in information relating to a criminal investigation before charge – at which point the balance tips the other way, in favour of identification, owing to their appearance in open court engaging principles of open justice.

Readers of zoom-in may recall that, in 2018, the High Court awarded Sir Cliff Richard hundreds of thousands of pounds in damages in his privacy claim against the BBC for naming him as a criminal suspect and televising live a police raid on his home. Sir Cliff was never arrested and, eventually, the CPS announced that no charges would be brought against him. In that case, the High Court similarly found that Sir Cliff had a reasonable expectation of privacy in relation to the information that he was a criminal suspect and the coverage of the raid on his home. After consideration of Sir Cliff’s and the BBC’s competing rights and interests, the Court found that the BBC’s Article 10 rights to freedom of expression and the public interest did not justify the interference with Sir Cliff’s Article 8 privacy rights. The BBC ultimately decided not to appeal.

In view of the way the common law of the United Kingdom has now developed, journalists and programme-makers wishing to identify a suspect before charge should tread very carefully and seek legal advice.