August 20, 2018

The BBC states that, despite deciding not to appeal the decision of Mr Justice Mann in Sir Cliff Richard OBE v The BBC [2018] EWHC 1837 (Ch), “the judgment creates new case law and represents a dramatic shift against press freedom”. It quotes Mann J’s own statement in the judgment that “the case is capable of having a significant impact on press reporting”. According to the BBC, the judgment raises “significant questions” over how the media can report investigations in the future and creates “huge uncertainty” as to what might qualify as being in the public interest.

As has been widely reported, the media has joined with the BBC in expressing concern that the judgment means there is now a hard and fast rule that the subject of a criminal investigation cannot be named. However, as Mann J said in his judgment refusing the BBC permission to appeal ([2018] EWHC 2115 (Ch)), “That is an erroneous reading of my judgment”.

Mann J said that his decision in the case “acknowledges that the reasonable expectation of privacy in the fact of an investigation is a presumption or starting point that can give way to countervailing factors”. He gave the examples of the safety of the public and the desirability to flush out potential witnesses or more complainants. In other words, he said, “The door is not closed to other potential reasons for displacing the presumption.” Further, he said, even if the presumption survives being displaced, “the press can still involve its Art.10 rights including any public interest factors which it considers to operate, and the balancing exercise then takes place”, and it is therefore “simply wrong to suggest that there is now some blanket restriction on reporting investigations”.

The BBC said, however, that the ruling will “limit the long-standing ability of journalists to report on police investigations” and “make it harder to scrutinise the conduct of the police”. The BBC also claimed that the judgment will “undermine the principle of the public’s right to know”.

The BBC said that the legalities were “complex” and that, even though it had been advised that the judge had erred in law, “it will be very difficult to persuade the Court of Appeal to isolate this issue of principle from the judge’s broader findings in this case.”

The risk was, the BBC said, that an appeal could result in “much uncertainty about what the media can legitimately report”.

For these reasons, the BBC said that it would not be appealing the ruling. Instead it has written to the Attorney General (see item below) to ask the Government to consider a review of the law in this area to “protect the right to properly and fairly report criminal investigations, and to name the person under investigation”. In the BBC’s view, “There is a fundamental principle of press freedom at stake here and one upon which we believe Parliament, as our lawmakers, should decide.” To read the BBC’s statement in full, click here.