The Court of Appeal (Civil Division) has reiterated that a suspect has a reasonable expectation of privacy in relation to the fact and details of a criminal investigation into his or her activities, until the point of charge. This important privacy case confirms the approach of the lower courts, and ought to give comfort to those being investigated by UK law enforcement agencies where charges are not ultimately made out. It follows the case of Sir Cliff Richard, who successfully sued the BBC over its intrusive and unlawful coverage of a police raid of his home, after which he was never arrested or charged. Importantly, the case also clarified that there is no "hierarchy of offences", with "private" criminal offences being treated in the same way as investigations into "business" crimes.
The Claimant, a US citizen identified in the proceedings as ZXC, was the Chief Executive of a regional division of X Ltd - a publically listed company operating overseas. The integrity of various transactions involving X Ltd had been a matter of public speculation for a number of years. This ultimately led to an investigation by UK law enforcement ("UKLEB").
In the autumn of 2016, Bloomberg reported that the Claimant had been interviewed by the UKLEB as part of its investigation. The Claimant did not challenge the publication of this fact.
As part of its on-going criminal investigation, the UKLEB sent a Letter of Request to a number of individuals, including ZXC, seeking banking and business records in relation to X Ltd. That letter revealed that the Claimant was suspected of conspiracy to defraud and set out the UKLEB's preliminary evidence for this. As is customary, the Letter of Request explicitly requested that confidentiality of its contents be preserved by the foreign State in order to preserve the integrity of the UKLEB's investigation. Bloomberg came into possession of the Letter of Request and published an article containing information from it.
The Claimant sought an injunction requiring Bloomberg to remove the article and an undertaking not to publish or disclose any confidential information relating to the UKLEB's investigation, although conceding that Bloomberg could continue to publish the mere fact that the Claimant was under investigation. This application was refused ( EWHC 328 (QB)]. However, the Claimant was successful in his claim for misuse of private information at first instance ( EWHC 970 (QB)) and it was this decision that fell for consideration by the Court of Appeal.
Application of the Two-Stage Test
Stage 1: does the claimant have a reasonable expectation of privacy in the relevant information?
In giving the leading judgment, Lord Justice Simon was emphatic that:
"those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point 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"
This expectation is not dependant on the underlying nature of the crime or the identity of the suspect. Simon LJ noted that "to be suspect of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion". Nonetheless, His Lordship was prepared to accept that there were some cases where a suspect's reasonable expectation of privacy "may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration". Examples given were rioting and electoral fraud.
Lord Justice Simon accepted that whether an expectation of privacy arises in any particular case will always depend on the individual facts. For example, if the suspect's name were to be released by the police for legitimate policing reasons, then he may well find it difficult to establish that he had a reasonable expectation of privacy in that information.
In the Claimant's particular case, Lord Justice Simon emphasised the following factors in concluding that his privacy rights were engaged:
- although the Claimant held a senior position in a publically listed company he was not a director;
- the Claimant accepted that Bloomberg could report on the matters that the UKLEB was investigating. By contrast, his claim was in relation to confidential details relating to the investigation itself and, in particular, the UKLEB's suspicions as to the Claimant's own conduct in the light of the evidence it had obtained;
- facts relating to the scope of the UKLEB's investigation and the particular mattes of which the Claimant was suspected had remained confidential prior to publication by Bloomberg;
- the publication had not been devastating or life changing, but was nonetheless "significantly adverse" in terms of loss of autonomy and damage to reputation; and
- significantly, the circumstances and purposes for which the information had come into Bloomberg's hands.
Stage 2 – if yes, is that expectation outweighed by a countervailing interest. For example, freedom of expression under article 10?
This aspect of the case was dealt with more briefly by the Court of Appeal. Lord Justice Simon emphasised that, in striking the balance between the Claimant's Article 8 (privacy) rights and Bloomberg's rights under Article 10 (freedom of expression), it is important to bear in mind that neither right takes precedence. Where those values conflict, it is necessary to focus closely on the comparative importance of the rights being claimed in the particular case, to take into account the justifications relied on for the interference and to apply a proportionality test.
His Lordship concluded that the trial judge's assessment of the competing factors had been "thorough and nuanced". In particular, he rejected Bloomberg's assertion that the trial judge had erred by drawing an "artificial distinction" between factual allegations about the Claimant's alleged criminal conduct on the one hand and the UKLEB's suspicions about that conduct on the other:
"there is plainly a difference between a report about the alleged criminal conduct of an individual; and a report about a police investigation into that individual and preliminary conclusions drawn from those investigations"
It is established law that the general presumption of privacy would be displaced if the public interest outweighed it, for example if the individual under investigation is a politician or someone with significant public responsibilities.
This decision is an important one, as it clarifies an issue which has been debated for some years. It also made clear that the reasonable expectation a suspect has to privacy is, in general, not dependent on the type of crime under investigation or the suspect's identity. However, there is an important difference between revealing information about a suspect's alleged criminal conduct and publishing confidential information about an on-going criminal investigation.