Innocent until proven guilty? The right to privacy whilst under criminal investigation

June 2, 2020

By Eddison Flint

In 2014 the BBC broke a news story declaring Sir Cliff Richard was under criminal investigation. Those events formed the beginnings of a protracted litigation that would culminate in a judgment striking right at the heart of human rights issues in 2018.

The Court in Richard v British Broadcasting Corporation and another [2018] EWHC 1837 (Ch) [2019] Ch. 169 had to make a decision as to where they felt the balance fell between the press’ right to freedom of expression (Article 10 ECHR) and a citizen’s right to a private life (Article 8 ECHR); here, Mr Justice Mann decided:

“As a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached. It is, as a general rule, not necessary for anyone outside the investigating force to know, and the consequences of wider knowledge have been made apparent in many cases.” [248]

As always, where there are competing human rights, there will never be an absolute position, these cases are very fact specific but it is important to note that the starting point in these cases, will be the general presumption that a person has a right to privacy.

In 2020 an important decision was handed down by the Court of Appeal in ZXC v Bloomberg L.P [2020] EWCA Civ 611. This case concerned the Claimant (ZXC) being named by the Defendant, media giant Bloomberg in connection with an investigation by a “UK Legal Enforcement Body”. In this case, not only had the Claimant been named in the investigation but further allegations arose in relation to specific alleged conduct.

In this case, Counsel for the Defendant argued that the cases concerning the right to privacy in criminal investigations that were cited by the trial judge “were either interim decisions based upon specific facts or were not such as to provide support for the general proposition”. In response, Lord Justice Simon stated categorically that:

“Since the matter arises for decision in the present case, I would take the opportunity to make clear 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 statement shows overwhelming support for the decision in Richard v British Broadcasting Corporation and sets a clear starting point when evaluating the Right to Privacy in Criminal Investigations.

Usefully at Paragraph 45 of the Judgment, Lord Justice Simon set out a list of factors to consider when undertaking this “balancing act”, this was by no means a checklist but they were as follows:

  1. The attributes of the claimant;
  2. The nature of the activity in which the claimant was engaged;
  3. The place at which it was happening;
  4. The nature and purpose of the intrusion;
  5. The absence of consent and whether it was known or could be inferred;
  6. The effect on the claimant; and
  7. The circumstances in which and the purposes for which the information came into the hands of the publisher.

The right to freedom of expression, particularly in the press, is a fundamental principle of our democracy. These decisions however show that there are caveats when it comes to criminal investigations. The prejudice and reputational damage that can occur was all too evident in Sir Cliff Richard’s case and the support for individual’s Article 8 rights was once again strengthened in Bloomberg.

Eddison Flint joined the criminal team at Exchange Chambers in October 2019. Prior to joining chambers, Eddison worked for a National Civil Law firm before joining the Crown Prosecution Service as a Pupil Barrister.