The Supreme Court confirms that, prior to charge, an individual under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation

Background

ZXC first brought a claim against Bloomberg for misuse of his private information under Article 8 of the ECHR in relation to an article published in 2016. The article was about a criminal investigation into ZXC and his employer, and the information had been obtained from a confidential Letter of Request issued by a UK law enforcement body.  To date, ZXC has not been arrested or charged.

At first instance, Mr Justice Nicklin found in favour of ZXC holding that “in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge” and awarded him £25,000 in damages. Bloomberg appealed that decision, and its appeal was dismissed by the Court of Appeal.

Judgment

Following a hearing on 30 November and 1 December 2021, the Supreme Court has unanimously dismissed Bloomberg’s appeal.

Lord Hamblen and Lord Stephens rejected each of the four arguments advanced by Bloomberg against the general rule of an expectation of privacy when an individual is under criminal investigation, including their arguments as to: (1) the presumption of innocence (the Court stated that, in this case, the context is “how others, including a person’s inner circle, their business or professional associates and the general public, will react to the publication of information that a person is under criminal investigation”); (2) defamation authorities (where the Court pointed out that the claim had not been brought in defamation and, instead it distinguished between the tort of defamation from the tort of misuse of private information, whose purpose is to protect an individual’s Article 8 rights, regardless of whether the information was true); (3) reputational damage (the Court viewed Bloomberg’s arguments as an unduly restrictive view of Article 8 of the ECHR and that information about an official criminal investigation into a person’s business activities can fall within the concept of “private life”); and (4) failure to apply the correct legal test (the Court rejected Bloomberg’s argument that the nature of the activity in which the claimant was engaged is a factor of particular significance. They accepted that the status of the claimant as a businessman involved in the affairs of a large public company means that the limits of acceptable criticism are wider than for a private individual but that does not mean there is no limit, or that this circumstance is determinative).

Comment

This is an important judgment for individuals who are under criminal investigation but who are never charged with an offence.  Such individuals would not have the benefit of a jury trial to exonerate them and, as a result, the rumours circulating about their purported involvement in criminal activity would live on forever, even if it were made known that they had never been charged.  By maintaining privacy in respect of the investigation, the police process can continue unhampered and the individual will be able to return to normal life if it is decided that there is no further action to be taken.  Whilst there is a legal presumption of innocence in favour of those accused of crimes, more often than not the court of public opinion severely impacts an individual’s reputation and, as a result, their personal and professional lives can be unnecessarily and unfairly ruined.  In the judgment, which effectively reaffirms what had already been held in first instance court decisions, such as the case brought by Sir Cliff Richard against the BBC (in which this firm successfully acted for Sir Cliff), the Court sought to find the right balance between the competing rights.