Sir Cliff Richard privacy case: BBC announces decision not to seek permission to appeal

16 08 2018

The BBC has announced that it will not seek permission to appeal against the judgment of Mann J awarding Sir Cliff Richard privacy damages of £210,000 ([2018] EWHC 1837 (Ch)).

The BBC was refused permission to appeal by Mann J on 26 July 2018 ([2018] EWHC 2115 (Ch)).  In the course of this judgment he made it clear that he had not imposed any “new blanket restraint on the reporting of the subject of a criminal investigation”:

My judgment 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; the safety of the public is one example. The desirability of flushing out potential witnesses or more potential complainants is another, as the judgment itself acknowledges. (See para.252 and probably para.221) The door is not closed to other potential reasons for displacing the presumption. Even if the right survives at that stage of the argument, 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. So it is simply wrong to suggest that there is now some blanket restriction on reporting investigations” [17]

The BBC had 21 days, expiring today, to renew its application for permission to appeal before the Court of Appeal.  It has now announced that it will not do so.

In its statement on its decision not to seek permission to appeal the BBC continues to argue that the judgment will “limit the long-standing ability of journalists to report on police investigations” relying on the fact that these concerns “have been widely echoed by many other media organisations”. 

In seeking to explain away its decision not to appeal against a judgment which it continues to contend is wrong, it said

At best, an appeal could recognise that the judge made an error of law on the important issue of the media being able to name suspects, but is unlikely to overturn his overall decision given all the other factual findings made against the BBC. This would still leave much uncertainty about what the media can legitimately report. At worst, the Court of Appeal could endorse the findings of the trial judge.

In common with the rest of the media, the BBC continues to fail to report that the overwhelming majority of the publish supports pre-charge anonymity (see our post here).

The Director General of the BBC has, rather curiously, sent a letter to the Attorney-General [pdf] asking the Government to consider a review of the law in this area.  It is suggested that this should include an assessment of the need for primary legislation for the purpose of protecting what it describes as “the right to report properly and fairly criminal investigation and to name the person under investigation”.

Although the Attorney-General is not responsible for law reform, it is noteworthy that successive governments have resisted attempts to legislate in this area.  For example, in his 2016 Review of the Metropolitan Police Service’s handling of Operation Yewtree Sir Richard Henriques recommended that

“A suspect should have the right to anonymity prior to arrest enforced by statute and criminal sanctions”  (Recommendation 10).

No action was taken on this recommendation and it is now, perhaps, time to legislate to protect the anonymity of suspects in accordance with the preference of the overwhelming majority of the public.


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16 08 2018
‘Sir Cliff Richard privacy case: BBC announces decision not to seek permission to appeal’ | Private Law Theory - Obligations, property, legal theory

[…] “The BBC has announced that it will not seek permission to appeal against the judgment of Mann J awarding Sir Cliff Richard privacy damages of £210,000 ([2018] EWHC 1837 (Ch)). The BBC was refused permission to appeal by Mann J on 26 July 2018 ([2018] EWHC 2115 (Ch)). In the course of this judgment he made it clear that he had not imposed any ‘new blanket restraint on the reporting of the subject of a criminal investigation’ …” (more) […]

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