HomeInsightsCourt of Appeal dismisses appeal and confirms Richards v BBC finding that a suspect of a criminal offence does, in general, have a reasonable expectation of privacy during the investigation stage

Contact

In 2013, the United Kingdom Legal Enforcement Body (UKLEB) announced the start of a criminal investigation into company X Ltd. The integrity of various transactions involving X Ltd had been publicly questioned for a number of years. Among these were transactions in a particular country (the Foreign State).

The defendant, Bloomberg LP, and other media outlets, reported this development, noting that the UKLEB was focusing on “allegations of fraud, bribery and corruption relating to the activities of the company or its subsidiaries”.

The claimant, ZXC, is a US citizen who worked for X Ltd, which operated overseas. ZXC was the Chief Executive of one of X Ltd’s regional divisions, but was not a director of X Ltd.

Some time in 2016, the UKLEB had sent a Letter of Request (LoR) addressed to the Competent Authority of the Foreign State. The LoR was headed, in bold, “Confidential Letter of Request”, and was expressed as a request for assistance pursuant to the United Nations Convention against Corruption and to the UN Convention against Transnational Organized Crime (Palermo, 2000). It gave a general description of the nature of the UKLEB’s investigation into X Ltd:

“The investigation is at an evidence gathering stage. There have been interviews with some witnesses and suspects. There have been no searches of properties linked to the suspects at this time. Nobody has been charged with any offence.”

In late 2016, having alerted ZXC’s solicitor, Bloomberg published on its website an article by one of its journalists referring to ZXC and indicating that he, amongst others, was being investigated (the Article). The Article was based on the confidential LoR.

ZXC sought an order that the information relating to him in the Article be taken down from the website on the basis of misuse of private information. ZXC’s application for an interim injunction failed, but in April 2019, Mr Justice Nicklin found that Bloomberg had breached ZXC’s privacy rights and awarded damages and an injunction restraining Bloomberg from publishing information, which further identified ZXC as the subject of a criminal investigation. Nicklin J held that Bloomberg had published private information about ZXC that was in principle protected by Article 8 of the European Convention on Human Rights and that in balancing ZXC’s rights against those of Bloomberg under Article 10, the balance came down in favour of the former.

Bloomberg appealed to the Court of Appeal. The primary question was whether, and to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities. It was common ground that, if someone is charged with an offence, there can be no such expectation.

Giving the lead judgment, Lord Justice Simon noted that Nicklin J had found that, on the evidence, nobody at Bloomberg involved in publication of the Article was aware of just how sensitive the LoR was. He also found that the Article contained information drawn almost exclusively from the LoR.

Simon LJ said that the first stage is to assess objectively what a reasonable person of ordinary sensibilities would feel if he or she were placed in the same position as ZXC and faced with the same publicity. The main issue between the parties was whether a person can have a reasonable expectation of privacy in the fact and the details of a police investigation, or an equivalent enquiry by an authorised prosecuting authority, into what was essentially a business transaction.

Having reviewed a number of first instance cases, including Richard v BBC [2019] EWHC (Ch), Nicklin J had concluded: “From these cases, it is possible now to say that, in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge” (emphasis original).

Simon LJ said that Nicklin J’s conclusion contained two important qualifications: (i) it is implicit that there might be exceptions to a general expectation of privacy; and (ii) the expectation of privacy does not continue after the suspect is charged.

Bloomberg criticised Nicklin J’s approach as failing properly to focus on the subject matter of the UKLEB investigation. Bloomberg said that if the information being investigated did not form part of a person’s private life, it did not become private because it was the subject of an investigation.

Simon LJ said there is a line to be drawn between public aspects of a private life (e.g. business or politics) and the personal aspects of a private life when it comes to a consideration of whether there is a reasonable expectation of privacy.

Further, one of the factors bearing on whether a reasonable person of ordinary sensibilities would consider that he had a reasonable expectation of privacy is the extent to which the information relates to what might be characterised as a public aspect of a personal life in contradistinction to the private aspect of a personal life, including sexual aspects of that life. Whether they do in the particular circumstances will depend upon the multi-factorial analysis set out in Murray v Express Newspapers Ltd [2009] Ch 481, which Nicklin J had followed.

Referring to Mr Justice Mann’s judgment in Richard v BBC, Simon LJ noted that, although in that case the police investigation related to allegations of historical sexual abuse, Mann J’s observations were “rightly directed more widely”. There is no invariable or unqualified right to privacy during an investigation, but it is the legitimate starting point. This is the correct approach and an accurate statement of the law, Simon LJ said.

Simon LJ made 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.

Simon LJ emphasised the point that in this case, ZXC had not even been arrested.

Further, Simon LJ said, the reasonable expectation of privacy is not in general dependant on the type of crime being investigated or the public characteristics of the suspect (for example, engagement in politics or business). The crime need not be sexual. To be suspected 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, he said.

Simon LJ accepted that there were some cases where the reasonable expectation of privacy may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration (rioting, for example, or electoral fraud). If this is the case, it will bear on the weight to be attached to the Article 8 rights at stage two of the process.

Nicklin J had also found that it was clear in the LoR that the investigations were at an early stage and that neither the extent nor the detail of its contents were in the public domain. This and the highly confidential nature of its contents should have been recognised by Bloomberg. Further, the UKLEB had objected to publication of the Article. All these matters were relevant to the question of whether ZXC, objectively speaking, had a reasonable expectation of privacy in the information contained in the LoR. The degree of confidentiality was, at least to this extent, qualitatively different to most police investigations.

In Simon LJ’s view, Nicklin J was right, at the very least, to treat the fact that the information in the Article was contained in a LoR and the circumstances in which the information came into the hands of Bloomberg, as showing the provisional nature of the UKLEB’s suspicion and consequently the reasonable expectation of privacy in relation to that information.

Stage two of the process involved balancing Bloomberg’s Article 10 rights against ZXC’s Article 8 rights.

Bloomberg submitted that if ZXC had established any rights under Article 8, they were necessarily “weak” rights and were substantially outweighed by the public interest in the exposure of crime.

Nicklin J had accepted that the issue of corruption in the Foreign State, and particularly the possible involvement in that corruption by X Ltd, its officers and senior employees, was a matter of high public interest. The news value of the Article was the identity of those suspected by the UKLEB based on evidence that it had gathered.

Simon LJ agreed that the UKLEB investigation into X Ltd was a matter of public interest and that there was a clear public interest in the media following and reporting on developments in the investigation. In discharging its role as “public watchdog”, the media could legitimately be expected to highlight, for example, perceived inadequacies in the investigation. However, Nicklin J had brought these matters into the balance and had noted that the Article did not make any such criticism, and that the private information contained in the LoR was not published in the Article for this purpose.

Simon LJ found that the confidential nature of the LoR was apparent from its terms and the circumstances in which it came into Bloomberg’s possession were such that it was bound to observe the confidentiality of the document. The fact that none of Bloomberg’s employees appeared to have appreciated its highly confidential nature, and the fact that the UKLEB had not pursued and (on Bloomberg’s case) ZXC could not pursue, a claim for breach of confidence, did not alter this position.

Simon LJ said that it was clear that there was a considerable amount of information available publicly about the UKLEB’s investigation, including ZXC’s involvement in that investigation, and that such information was no longer confidential. However, ZXC was not trying to stop what was already in the public domain. His claim was closely focussed on what had been published in the Article. There was no reason to disagree with Nicklin J’s view that there was no sufficient public interest to justify disclosure of the LoR’s contents and that the confidentiality of the UKLEB’s investigations should be maintained.

The appeal was dismissed. (ZXC v Bloomberg LP [2020] EWCA Civ 611 (15 May 2020) — to read the judgment in full, click here.

Topics