The trial judge (Mr Justice Mann) in Cliff Richard’s successful privacy claim against the BBC ( EWHC 1837 (Ch)) has not seen the best side of the British media. In 2015 he presided over the phone hacking trial brought by victims against the Mirror newspaper group, Gulati v MGN.
In that case, he made legal history by awarding very substantial privacy damages to phone hacking victims; far higher than had been awarded previously. This was then unsuccessfully appealed and leave to appeal was refused by the Supreme Court. During the course of that trial he will have been exposed to the appalling dishonesty, arrogance, self-interest and self-righteousness which often characterises the British media, and it is evident from his judgement that he did not like what he saw.
He was similarly unimpressed by the actions or credibility of the BBC in relation to Sir Cliff. He observed that the lead BBC journalists “relied on a form of threat…to get his information about the search and the confirmation that he felt he needed.” He went on to observe that “it is very significant that the publication started with obviously private and sensitive information, obtained from someone who, to the knowledge of [the BBC journalist], ought not to have revealed it, and confirm they’ve bolstered with a ploy in the form of the perceived threat [against the police] have ought not to have been made”. He was also by no means convinced that all the evidence given by the BBC was truthful.
Predictably, there has been an outcry on the part of the media, saying that this Judgement will have a “chilling effect” on press freedom because Mann J stated that “As a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation.”
Mann J acknowledged in his Judgement “that that case is capable of having a significant impact on press reporting.” He however concluded that “the BBC went in for an invasion of Sir Cliff’s privacy rights in a big way” and “this was a very serious invasion of privacy rights, which had a very adverse effect.”
Mann J’s judgement must be seen in the context of Cliff Richard not even having been arrested, let alone charged. As we now know, his accuser was himself a convicted sex offender. Sir Cliff’s unchallenged evidence was that the actions of the police and the BBC had a devastating effect on his life.
Against this (cries the media) there are two primary reasons why Mann J is wrong. The first is what is called “the public’s right to know”. Nothing will convince me that the general public need know about every individual that the police at any time suspect and about whom investigations are undertaken – especially when the police can get it so spectacularly wrong, as it did in Cliff’s case.
The second is that when suspects are identified, other victims may then come forward. Cases such as Harvey Weinstein and Rolf Harris are cited. But what is the objection to the identifying of an individual taking place only subsequent both to an arrest, and to a decision by the police and the Crown Prosecution Service to charge the individual? Suspects can then come forward in circumstances where at least a carefully considered decision has been made that there is sufficient evidence to justify the infliction of immense damage on an individual by their being named in this way.
As Mann J acknowledged, the cardinal principle of an individual being innocent until proven guilty is not one which is endorsed the general public; “If the presumption of innocence were…given effect to, and if the general public …universally capable of adopting a completely open…-minded view of the fact of an investigation so that there was no risk of taint … (assuming no charge) then the position might be different. But neither of those things is true.” Given that attitude both on our part and that of the media – as the grotesque treatment by the press of Christopher Jeffries illustrated, Mann J’s Judgement upholding Sir Cliff’s right to privacy is surely right.
Jonathan Coad is a consultant at Keystone Law