Why Sir Cliff Richard’s case was wrongly decided – Paul Wragg

There are three reasons why I think the case of Sir Cliff Richard v BBC is wrongly decided.  Firstly, it seems to me that whilst a wrong has been done to Sir Cliff, this was committed by the police when it, or someone within it, disclosed information to the BBC that Sir Cliff was being investigated as part of Operation Yewtree (it must be stressed that the CPS announced on 16 June 2016 that no charges would be made against Sir Cliff and that, as was said in court, ‘he is an innocent man in the eyes of the law’).

Secondly, I think that the High Court made significant errors of law, not fact, that render the decision eminently appealable (ie, it is not simply that I think the judge made findings of fact that I do not agree with); Thirdly, I think the ramifications of the judgment have larger ramifications that ought to have played a greater part in the decision, relating to the findings of law about i) the reasonable expectation of privacy that pre-charge suspects have and ii) the public interest in publicising the activities of the police.

I do not doubt that others will disagree with me and I welcome their response.  There are broader public policy issues raised by the case that require serious attention and considered debate.  This is all the more important if the BBC does not appeal (although the feeling is they will).

Ethics

I must stress that I have great sympathy with Sir Cliff Richard’s position.  He does not deserve what he has been through.  In defending the BBC, as I will shortly, I do not say anything about the ethics of what they did, only the position in law.  I am sympathetic to the argument that a complaint (singular or plural) about compliance with their ethical code ought to be raised, although appreciate that the outcome of that, even if successful, would not generate the same level of vindication as the court case has.

The Administration of Privacy Claims

Finally, I must take this opportunity for a personal gripe.  The misuse of private information tort (“MOPI”) is a fascinating area and raises genuinely perplexing issues that deserve great reflection.  But I am not convinced that, even though reasonable people may disagree on the outcome, the case necessitated a judgment of some 122 pages and 454 paragraphs (somewhere, Lord Denning is spinning in his grave).  I suspect I am not alone in feeling mystified at the level of detail some privacy cases attract and it concerns me that these decisions can read as if MOPI is an unusual area of law, or one not often litigated (ie, like Intentional Infliction of Emotional Distress), or one of such esoteric qualities that every principle needs reams of supporting literature and case law analysis.

There were three questions to answer here: 1) did Sir Cliff Richard have a reasonable expectation of privacy as against the BBC in the information that he was being investigated as part of Operation Yewtree?  2) if so, was there a public interest in publicising this information?  3) Did the extent of that public interest warrant the damage done to his legitimate interest in privacy?

Did Sir Cliff Richard have a reasonable expectation of privacy as against the BBC in the information that he was being investigated as part of Operation Yewtree?

The finding in Sir Cliff’s favour on reasonable expectation of privacy stems chiefly from Mr Justice Mann’s conclusion that, when determining the existence of a reasonable expectation of privacy, the court needs look no further than the quality of the information at stake.  That the SYP had conceded in earlier litigation that they had breached Sir Cliff’s reasonable expectation of privacy was taken as proof that he had a reasonable expectation of privacy against the BBC.

We see this conclusion in two places.  Here:

‘Sir Cliff’s rights in respect of the information in the hands of the police are not based on a reasonable expectation of privacy as long as the information does not fall into the hands of the media; he has a reasonable expectation of privacy full stop.’ [258]

And here:

‘there is no basis for saying that a reasonable expectation of privacy, which previously existed, is somehow removed, or requires a complete reconsideration, merely because the information has come into the hands of the media… What matters is the substance of what is protected, and the substance of the protection.’ [259]

Let us put to one side that the SYP conceded the point on reasonable expectation of privacy; it was not judicially determined.  Let us assume that, had they disputed it, the court would have had good grounds to find against them, for reasons I will make clear shortly.

I disagree with the legal analysis about reasonable expectation of privacy on two related grounds: one, the context in which information is received also goes to the reasonable expectation of privacy determination, as the Court of Appeal decision in Murray v Express Newspapers Ltd makes clear (para 36):

“the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.’ (emphasis added)

Now, notice I have cherry-picked here what I take to be most relevant.  Clearly, I cannot ignore that the effect on the claimant is also important as is the absence of consent and the inference of such.  Neither do I ignore the ethical issues about the circumstances in which the information was received (although I suspect that this is intended to refer to surreptitious recording of information as in Campbell and Murray itself, rather than that the information was leaked).

But, I do not think these concessions do much violence to my ultimate point: that the difference in identity between the SYP and the BBC is different because their intentions for the information were different (but I’ll expand on this in a moment).  Let me conclude this first point by highlighting some simple examples: a person will not have the same reasonable expectation of privacy when in the public toilet and the toilet at home, even though the information received by the stranger in one context and the spouse/partner in the other is identical; similarly, the reasonable expectation of privacy claim is different when a full body-scanner is used by airport security and by the average employer, even though the information obtained is identical; finally, the reasonable expectation of privacy as against the private investigator who tracks my movements and the local council whose CCTV cameras essentially do the same is different even though the information may be identical.

My second point on the reasonable expectation of privacy is the difference in obligation between SYP and the BBC as against Sir Cliff (or anyone else).  Put simply, SYP, as a public authority, does have an absolute obligation under the Human Rights Act 1998 to act compatibly with human rights (this is not to say that the Art 8 right is absolute; it is not).  The disclosures made by SYP to the BBC (inadvertently or not) clearly breached those obligations and could not be excused on operational grounds.  There was no claim, for example, that publicity might generate further evidence.

The position against the BBC is more complicated but, ultimately, weaker.  There is some merit (and some mileage left) in asking whether the BBC is a public authority under the HRA.  To my mind, this question has never been answered satisfactorily but to the extent it has been examined, the answer appears to be no.  For example, see the Joint Committee on Human Rights in the 2003/04 session which makes no reference to the BBC on this point.  But even if it is, the obligation owed by the BBC must be tempered by its obligations as a broadcaster of news – a function that SYP does not have – and which clearly speaks to the final consideration in the Murray test, the purposes for which the information came into their hands.

There are important operational reasons why investigations need to be kept secret, eg, to avoid tipping off either the suspect or his/her accomplices.  But, of course, these are matters of confidentiality.  The privacy aspect here relates to the sensitivity that the police ought to have toward those suspected of a crime before they have been charged.  Whereas I do not say that this consideration is absolute, it is understandable why those considerations ought to arise as part of the police’s obligations to the public under the Human Rights Act 1998.

But the BBC is not in the same position.  The question of reasonable expectation of privacy for the police and the BBC is different.  As against the SYP, it is: was it reasonable for the claimant to expect that news of the impending search would not be distributed to the press, including the BBC?  As against the BBC, it is: was it reasonable for the claimant to expect that the BBC would not broadcast the search of his property by the police as part of their investigation into him about allegations of non-recent criminal behaviour?  The distinction may be subtle but it is important.

Why is it important?  In short, because the BBC, in monitoring the police, and its activities, serves the public interest.  Now, at this point, I do not wish to confuse the public interest in publication with the reasonable expectation of privacy relating to that activity, albeit it is difficult, certainly here, to maintain a neat distinction.  But the question, to my mind, is the reasonableness of the claimant expecting the BBC to respect his privacy in circumstances where it knows he is being investigated as part of Operation Yewtree – and, although it does not arise on the facts (I do not think), it is not irrelevant that the BBC has received much criticism for its silence in the Savile saga.

Is Sir Cliff’s expectation reasonable?  Perhaps so, perhaps not, but I think the question is more finely balanced than Mann J recognises.

In fairness, he recognises something of the difficulty, as when he notes Lady Justice Sharp’s observation in PNM (when it was still known as that) that there is “a growing recognition that as a matter of public policy, the identity of those arrested or suspected of a crime should not be released to the public save in exceptional and clearly defined circumstances” [234].  Yet his reliance on this principle is weakened by the failure to observe the distinctive obligations that the police and BBC have.

His reasoning also speaks to, I think, an unhappy conflation of privacy harms (such as emotional distress) with reputational concerns, as when he says ‘the consequences of such an accusation [specifically, Operation Yewtree] in that form are something that should be taken into account in considering whether the suspect has a legitimate expectation of privacy in the fact of the investigation’ [246].  This strikes me as relevant only after the police investigation is concluded.  Then, if the claimant’s reputation is impugned, he has a claim in defamation.  It is important that privacy law is not used to shortcut the perceived deficiencies of contempt of court laws or defamation.  All of this, though, is recognised in Khuja v Times Newspapers Ltd – a case that Mann J notes, but largely ignores. Instead, he finds:

‘It seems to me that on the authorities, and 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 against the police, this is undoubtedly correct – but it is rather more doubtful when it is the press that discloses the information.  It is also very troubling for the chilling effect that this ruling has on press freedom.  I appreciate the term ‘chilling effect’ is used far too often, but here it strikes me as an accurate prediction.  Admittedly, Khuja was about a person’s identity being revealed in open court and subsequently published by the press.  But the reasoning strikes me as applicable to the police process as a whole – but, anyway, the majority of the Supreme Court was adamant that this could not give rise to a reasonable expectation of privacy.

The situation in Richard is different.  It is about a police investigation – and recently there have been some troubling decisions which suggest there is a reasonable expectation of privacy in being interviewed by the police and these cases are discussed by Mann J.  Yet, these cases cannot stand for the proposition that there is always a reasonable expectation of privacy when a person is investigated by the police.  That would be against public policy; it would provide space for corruption, particularly where powerful figures are under scrutiny; we do not want the press to decide that they best not reveal the names of those investigated for fear of being sued.  All of this is recognised by Mann J, I think – certainly he sees that legal recognition of a reasonable expectation of privacy in these circumstances is highly fact-sensitive and requires some aggravating factors before it can arise.

But, at the very least, we might say that police interview under caution involves a degree of discretion, at least as far as police respect for privacy goes.  It can be done quietly, away from public scrutiny and there are obvious instances where this has advantages for police investigation, particularly where there is a fear of tipping off.  The execution of a search warrant, though, is materially different.  It is unpersuasive to say that this happens in private (even if it happens very early in the morning, and even if no one is about).  It happens in plain sight – regardless of whether anyone sees it or not.  Obviously, there is a material difference between that which is observed by passers-by and that which is broadcast to the world at large.  But, if anything, that goes to the second stage of the Campbell test, not the first.

It seems to me there is more reason to doubt the existence of the reasonable expectation of privacy than Mann J allows; I do not think the law is correctly stated. here

Was there a public interest in publishing this information?

Even if I am wrong on that point, though, issues arise on the court’s handling of the second stage, especially on the question of whether there was a public interest in publication.

On this, Mann J found that there was not because of a) the BBC’s conduct in publishing the information (that it was more interested in beating a competitor than serving the public interest; and b) that whereas Operation Yewtree is a matter of public interest, the names of suspects are not.

We see a) arise here:

‘For what it is worth, I do not believe that this justification [the public interest] was much in the minds of those at the BBC at the time. I think that they, or most of them, were far more impressed by the size of the story and that they had the opportunity to scoop their rivals’ [280]

And later, here:

‘To that extent it can be said that the BBC did not quite comply with what it itself saw as the ethical requirements of its journalism at that stage. The real reason for that was, in my view, because it was giving a lot of weight, in its own deliberations, to preserving the exclusivity of its own scoop.’ [295]

And, as if he had not rebuked the BBC enough,

‘That narrative does not really do justice to the quality of the broadcasts. They were, as I have said, presented with a significant degree of breathless sensationalism’ [300]

We see b) here:

‘Knowing that Sir Cliff was under investigation might be of interest to the gossip-mongers, but it does not contribute materially to the genuine public interest in the existence of police investigations in this area. It was known that investigations were made and prosecutions brought. I do not think that knowledge of the identity of the subject of the investigation was a material legitimate addition to the stock of public knowledge for these purposes.’ [282]

In this post-Yewtree age, this sort of cavalier statement is not only remarkable but quite dangerous.  Clearly, it has a chilling effect on press freedom.  It is here that, I think, Mann makes two further mistakes relating to a) the judicial method of determining if a public interest exists; b) the significance of the speaker’s motives and the quality of their journalism when making that assessment.

That this happens is strange because Mann J recognises the context of this sort of arrest:

‘The whole thing [Yewtree and Rotherham] was very much a source of legitimate public interest and concern, and the public had a legitimate interest in knowing at a general level that the police were pursuing alleged perpetrators, and particularly those who might have abused their celebrity status. At that level, therefore, information about the inquiry did… contribute to a debate of general public interest.’ [281]

But concludes:

‘The second part involves the element of identifying the individual concerned. It does not follow that, because an investigation at a general level was a matter of public interest, the identity of the subject of the investigation also attracted that characterisation. I do not think that it did.’ [282]

At this point, it seems to me Mann J is again unhelpfully conflating privacy with reputation.  Clearly, significant reputational damage can be done by press reports that imply a connection with Yewtree.  All that is understood.  But that analysis is post, not pre, investigation.

But Mann J sees things differently:

‘I acknowledge a very significant public interest in the fact of police investigations into historic sex abuse, including the fact that those investigations are pursued against those in public life. The public interest in identifying those persons does not, in my view, exist in this case.  If I am wrong about that, it is not very weighty and is heavily outweighed by the seriousness of the invasion.’ [317]

This is problematic – as is the view that the journalistic quality of the broadcast was also material.  Judges should not act as editors or arbiters of taste.  All of this is very well established.  It is not for judges to chastise any journalist for failing to reach high ethical standards.

But, most fundamentally, I think Mann J is simply wrong about what this broadcast represents.  Two points are important: first, the finding of a public interest is an objective, not subjective, matter.  Ultimately, it is irrelevant what the press thinks is the public interest in the story, because this goes to motive.  And motive can have no bearing on our understanding of public interest.  Of course the BBC sent up the helicopter because Sir Cliff Richard was involved and not Richard Cliff, painter and decorator.  And, of course, there is no public interest in knowing what Sir Cliff Richard is up to these days, how he fills his time, what his favourite pastimes are.

But the public interest here is not about Sir Cliff Richard, it is about SYP.  It is about the fact that SYP had convinced a judge the investigation was sufficiently serious to issue a search warrant.  That, of itself, is in the public interest.  Now, Mann J recognises this, sort of, but says there is no public interest in knowing of this unless there are operational reasons for disclosure (by which he means that additional or fresh evidence might be disclosed).  But this is wrong.  There is always a public interest in knowing what the police does in the public’s name.  There is always a public interest in knowing how the police interact with celebrity – and the upper echelons of society: Are they intimated?  Do they apply the law equally?  In other words, the rule of law is firmly in view.

But Mann J dismisses this sort of argument firmly out of hand:

‘In evidence there was an attempt by Mr Smith to justify the use of the helicopter as providing evidence as to what was going on inside, as if some form of verification was necessary or appropriate. I find that that was a spurious justification. The helicopter shots did not verify or evidence anything particularly useful or controversial that needed evidencing. They were moving pictures of the property, of seven or eight people in plain clothes walking to a building, the same people walking back to their cars and fuzzy shots of two or three people in Sir Cliff’s flat. It may have made for more entertaining and attention-grabbing journalism. It may be justifiable or explicable on the footing that TV is a visual medium and pictures are part of what it does. It did not, however, add any particularly useful information.’ [300]

This misses the point.  It is wrong.  Even if the images are entirely mundane, the public interest is served.

Did the extent of that public interest warrant the damage done to his legitimate interest in privacy?

Now, there is merit in saying that (as Mann J does) ‘the consequences of a disclosure for a person such as Sir Cliff are capable of being, and were, very serious’ [316] and that these outweighed the public interest at stake.  This conclusion would be remarkable of itself because, as I have said consistently (and constantly) before, the problem with MOPI is that judges do not really balance the respective weights of the two claims (even when they say they do), they instead apply a simple rule: if there is a public interest in publication, the claim fails; if not, the claim succeeds.  This would explain Mann J’s insistence that there is NO (or de minimis) public interest at stake.

Let us consider the two claims.  On the one hand, I say that there is a strong public interest here in knowing how the police conduct investigations against the upper echelons of society.  This goes directly to the rule of law.  On the other hand, there is the damage done to Sir Cliff Richard.  But what is that damage?  The Campbell decision, and others, tell us that privacy is about dignity and autonomy.  What was it about the reporting that caused harm to Sir Cliff’s dignity and autonomy?  It is tolerably clear that he was most concerned about (and most affected by) the intrusive nature of the coverage (the helicopter recording events as his possessions were taken out of his flat) and the reputational harm.  Let us put reputational harm to one side (because that is properly dealt with through defamation – or, if it is not, then we shall need another full length blog to analyse the point).  What threat to dignity and autonomy arises from the recording, via helicopter, of his possessions being captured by the police?  I do not say there is no damage to these values, but is it at the same level as the damage done in the Mosley case, or the Tulisa case, or AMP v Persons Unknown, or the McClaren case (where the claim failed because the public interest outweighed it) or the YXB v TNO case (just read the first section to see my point in action).

I do not think so.  Consequently, even if it is accepted that damage is done to Sir Cliff’s privacy interests, that damage is less than in other cases – which I say makes it medium rather than high – as against the public interest in publication, which I say is high.

Now, as I say, reasonable people can disagree about the weight attached to the two claims.  But what needs serious thought is the consequence, if any, of this case and others like it.  Are we certain that we want suspects to have the sort of privacy rights that Richard v BBC implies?

Dr Paul Wragg, Editor-in-Chief, Communications Law; Associate Professor of Law, University of Leeds; Associate Fellow of the Honourable Society of the Inner Temple.