This suggests there was not much debate between Lords Hamblen and Stephens (giving the judgment) and Lords Reed, Lloyd-Jones and Sales (agreeing) that the judgment should confirm what has become settled law in the past 7 years or so – that a person under criminal investigation has a reasonable expectation of privacy in relation to the information relating to the investigation prior to being charged.
Background
The factual and procedural background to this case was covered in previous case comments relating to the first instance and Court of Appeal decisions in this case. The high level summary is that:
- At first instance ([2019] EWHC 970 (QB)), Nicklin J, applying the two-stage test, upheld the claimant’s claim, granted an injunction and awarded £25,000 in damages. In relation to stage 1, he considered that the claimant had a reasonable expectation of privacy in respect of the relevant information (as defined in paragraph 106 of the judgment, which broadly speaking related to the fact of UKLEB’s enquiries and the details of the deal that UKLEB was investigating in relation to the Claimant). In relation to stage 2, he held that whilst there was a high public interest in the issues of corruption in a foreign state and in ZXC’s company’s involvement in that corruption, in this case the interest was indirect because the article did not report on the findings of an investigation by Bloomberg, but instead on the contents of the Letter of Request. That letter was a confidential document, and there was a clear public interest in preserving the confidentiality of both the letter itself and of its contents.
- The Court of Appeal ([2020] EWCA Civ 611, Underhill, Bean and Simon LJJ) upheld the judgment. It rejected all of Bloomberg’s grounds of appeal, and notably the grounds that Nicklin J (a) had been wrong to conclude that, in general, a person has a reasonable expectation of privacy in a police investigation up to the point of charge (expressing this as a “legitimate starting point”); (b) had wrongly conflated private information with confidential information; and (c) had wrongly taken the confidentiality of the Letter of Request as the starting point to his assessment in the public interest.
Supreme Court judgment
Bloomberg was given permission to appeal on 17 December 2020, on three grounds which were outlined in a previous case comment. The Supreme Court dismissed all three of Bloomberg’s grounds of appeal (outlined at [63]).
The third ground (whether the Court of Appeal was wrong to uphold the findings of Nicklin J) was dependent on the Court’s findings in relation to the first and second grounds. As those failed, the third ground of appeal was naturally rejected.
The second ground of appeal was dismissed on the basis that “neither the judge nor the Court of Appeal held that the fact that the information originated from a confidential document rendered the information private or meant that Bloomberg could not rely on the public interest in its disclosure”: [147]. Nicklin J had recognised that there is no necessary overlap between private and confidential information, although that will often be the case, and had properly applied the balancing exercise, recognising that despite there being no breach of confidence claim, the information was in fact private, and that there was a clear public interest in maintaining the confidentiality of the letter and of its contents. The Court of Appeal was right to uphold his findings.
More interesting is the rejection of the first ground of appeal, which makes up most of the Supreme Court’s judgment. The Court noted that this ground of appeal concerned only the first stage of the test (namely, whether the information was private). Having gone through the history of cases and guidance setting out “the negative effect on an innocent person’s reputation of the publication that he or she is being investigated by the police or an organ of the state” (at paras 80-99), the Court examined the bases upon which Bloomberg challenged the “general rule” – now better seen and approached as the “legitimate starting point” – that such an investigation is private information (outlined in detail at paragraph 74 of the judgment). In dismissing Bloomberg’s arguments, the Court made comments which entirely fall entirely on the side of Article 8 rights:
- The Court did not agree that the legitimate starting point “overstates the likelihood of publication of the information causing damage to the claimant’s reputation and underestimates the public’s ability to observe the legal presumption of innocence”. On the contrary, it considered that the essential point was that “reputational and other harm will ordinarily be caused to the individual by the publication of such information. The degree of that harm depends on the factual circumstances, but experience shows that it can be profound and irremediable”: [109].
- The Court did not entertain the argument that the reasoning of Nicklin J and the Court of Appeal to equate suspicion or investigation with guilt “runs contrary to well-established principles in defamation law that the ordinary reasonable reader is not unduly suspicious or avid for scandal, can be taken to know about things that are common knowledge, and is capable of distinguishing suspicion or investigation from guilt”. It considered it “inappropriate to read across the concept of a hypothetical reader from the tort of defamation into the tort of misuse of private information”, because the enquiry as to how others would perceive the claimant if the information was published is a factual one which “does not require the application of an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to the information”: [112].
- The Court found that Bloomberg had adopted an “unduly restrictive view of the protection afforded by article 8” in submitting that “information about an individual being subject to criminal investigation is [not] private because it is potentially reputationally damaging. [but rather] … because – irrespective of the effect on the claimant’s reputation – information of that nature belongs to a part of the claimant’s life which is of no-one else’s concern” [114; 115]. The Court firmly stated that “a person’s reputation falls within the scope of his or her “private life” so that article 8 applies provided the attack on reputation attains a certain level of seriousness and causes prejudice to personal enjoyment of the right to respect for private life”: [121]. Building on this, the Court in fact found that private life can include activities of a professional or business nature (see [116]), even where (as was the case of the claimant) the individual was “a businessman actively involved in the affairs of a large public company” – this did mean that the limits of acceptable criticism were wider, but not that there is no limit, nor that the circumstances is determinative: [140]
- The Court was satisfied that the lower courts had correctly applied the multi-factorial analysis in Murray, and was satisfied that the present case “concerns information relating to a criminal investigation… rather than… media intrusion into a person’s activities” and that “the private nature of that information is not affected by the specifics of the activities being investigated”: [129; 131].
- Having stated that the first stage of the test involves a fact-specific enquiry, the Court considered that in the circumstances of the case “it is appropriate to state that there is a legitimate starting point that there is an expectation of privacy in relation to that information”: 144]. It is appropriate to note that this case involved a criminal investigation, but not a criminal investigation carried out by the police.
Comment
The outcome of the appeal in ZXC is unsurprising, and provides welcome confirmation that those under criminal investigation are entitled to privacy protections. The potentially devastating consequences for individuals identified as suspects in criminal cases (but never charged) have long been recognised. Pre-charge anonymity has widespread public support (over 86% in the latest available poll) and Supreme Court, has, after a series of decisions of the lower courts, confirmed that this is also the position of the law.
In doing so, the Supreme Court rightly and authoritatively dismissed the arguments based on “open justice” and the public’s ability to recognise that accused persons are “innocent until proven guilty”. The judgment confirms that the legitimate starting point is that those under criminal investigation should remain anonymous unless and until they are charged. There may, of course, be public interest counter-arguments on the facts of particular cases but Article 10 does not provide a universal justification for inflicting serious (and often wholly unjustified) damage on the reputations of suspects. This decision will be welcomed by privacy campaigners and the public generally.
Mathilde Groppo is a Senior Associate at Carter-Ruck