No smoke without fire...
In recent weeks, a troubling decision for the press has emerged concerning reporting the identities of individuals subject to criminal investigation.
It is well established that there is no expectation of privacy in relation to the identity of a person charged with a criminal offence, but up until recently no such “rule of thumb” existed in relation to those simply being investigated and the decision of whether or not to name was left to the discretion of editors.
We’re all familiar with the original game-changing case in this regard. The 2019 decision in Richard v BBC sent a chill of fear up the spine of every publisher (and defence lawyer) in the country, it gave frightening clarity to the view of the courts in relation to the privacy of suspects in a criminal investigation, whether famous or not.
This latest case, ZXC v Bloomberg L.P.  EWHC 611, arose when the Claimant, chief executive of part of X Limited became subject to criminal investigation by a UK Law Enforcement Body (“UKLEB”) concerning possible offences of foreign corruption, allegedly carried out by X Ltd.
The defendant, in its capacity as a well-known financial journalism outlet, published an article based on a Letter of Request from the UKLEB to a foreign government in which they sought information about ZXC and identified him as a suspect in the investigation. Bloomberg published this article at a time when ZXC had not been charged with any offence, and following publication, he brought a claim on several grounds, including misuse of private information.
In the High Court, building on the decision in Richard, Mr. Justice Nicklin held that the Article 10 rights of the Defendant did not outweigh the Claimant’s Article 8 rights to privacy and therefore, a suspect does have a reasonable expectation of privacy in a criminal investigation up to the point of charge. On this basis, he upheld the Claimant’s claim, granting an injunction and awarding him £25,000 in damages.
Bloomberg launched an appeal against the first instance decision in which the Judges placed heavy emphasis on the well-established two stage test for claims in privacy.
1. Is the information in question private? and
2. In all the circumstances, do the Article 8 rights of the individual outweigh the Article 10 rights to freedom of expression of the press?
Giving the leading judgment, Lord Justice Simon determined firstly in respect of the first stage of the test that individuals subject to criminal investigation (who are yet to be charged) do have a reasonable expectation in respect of that information on the basis that “the law should recognize 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”.
Considering all the circumstances referred to in stage 2 of the test, Simon LJ went on to note that the reasonable expectation of privacy was not, in general, “dependant on the type of crime being investigated or the public characteristics of the suspect…to be suspected of a crime is damaging whatever the nature of the crime, it is sensitive personal information".
Though it was acknowledged by the Judge that there will be cases where the public nature of the activity may be such to reduce significantly, if not negate, the reasonable expectation of privacy, it is a concerning decision, nonetheless.
Bloomberg has applied for leave to appeal, but pending the outcome of this application, for now at least, the Courts appear to have put paid to the notion of the public’s right to know – at least in so far as it relates to naming suspects prior to charge.
In a sentiment surely echoed throughout the industry, the Society of Editors in their response to the judgment have said that this decision has the capacity to lead to a system of criminal investigations “shrouded in secrecy” which will serve only to fuel speculation and rumour.
In contrast, those under investigation for criminal activity and their legal teams are likely to welcome this decision as another weapon in their reputation management arsenal. Whereas previously, the main considerations ahead of publication would have been those of libel and contempt when determining whether or not to proceed with naming a suspect ahead of charge, publishers must now carefully weigh up whether publication of the identity of a suspect will constitute misuse of their private information also.
Whether this will continue, remains to be seen – watch this space!