August 20, 2018

Following the BBC’s decision not to ask the Court of Appeal for permission to appeal the recent decision by Mr Justice Mann in Sir Cliff Richard OBE v The BBC ([2018] EWHC 1837 (Ch)) (see item above), the BBC has written to the Attorney General asking the Government to consider a review of the law in relation to the naming of suspects under criminal investigations.

Giving its reasons for not appealing the judgment, the BBC said in its letter: “We understand that the Court is likely to say that it is for Parliament, not the judiciary, to devise a statutory scheme setting out in detail the balance between competing public interests.”

Essentially, the BBC wants the Government to consider the merits of conducting a review of the state of the law on the issues raised by the case, including an assessment of the need for primary legislation to “protect the right to report properly and fairly criminal investigations, and to name the person under investigation”.

In the BBC’s view, Mann J made a number of errors of law in reaching his conclusions and the implications of the judgment are “profound”. For example, it says:

• news organisations will now be very reluctant to name a suspect in a criminal investigation on a matter of public interest unless the police are prepared to say, on the record, that they have a good policing reason for doing so. The level of damages apparently now applicable to a media organisation that makes a wrong decision is so high that the media is likely to err on the side of caution;
• the media’s role of undertaking a critical analysis of police activity will be significantly impaired;
• the beneficial effect of media reports of police investigations encouraging witnesses or complainants to come forward will no longer be achieved;
• reporting that the suspect is a well-known celebrity, but not naming them, would inevitably provoke speculation (almost all of which would be uninformed) as to the identity of the “celebrity” concerned; and
• media organisations will now be more wary of reporting investigations into the wealthy and the well known for fear of large damages awards, even when they know the information they have is accurate.

For a link to a copy of the full letter to the Attorney General, click here.