On 29 June 2023,  Collins Rice J granted an injunction in the case of WFZ v BBC [2023] EWHC 1618 (KB) restraining publication by the BBC of a report in a form which identified the claimant as the subject of active criminal proceedings.   The application for an injunction was heard on  14 and 19 June 2023.

The judgment records that the BBC intended to report that at least a quarter of businesses in the sector in which the Claimant works have had employees investigated by the police for serious sexual offences, yet despite this the sector does not have any policies or procedures for employees who are accused of violence against women, nor any consistency of approach to allegations. It states, ‘the reports will use [the Claimant’s] case as a stark illustration of these issues‘. They will explain that the Claimant has been investigated by the police and arrested in respect of the allegations, since it is important to explain that his employer knows that this is the position and has taken no action.

The Claimant had been arrested 2022 on suspicion of a serious sexual offence.  The police released a statement to the media identifying the offence but not the Claimant.  The Claimant was further arrested on suspicion of two serious sexual offences alleged to have been committed against a different woman. The Claimant was bailed shortly afterwards.

The Judge was satisfied that the intended publication created a substantial and manifest risk that the course of justice in criminal proceedings would be seriously impeded or prejudiced:

“The case is distinguished by the exceptional, and truly enormous, degree of publicity and public reaction I am entirely satisfied publication by the BBC would generate. It would be wholly naïve to proceed on any other basis and it was not seriously suggested that I should. I do not accept that that publicity could be managed satisfactorily or at all, including by any of the means indicated by the BBC. The identification of the Claimant in however a broad or allusive a manner in connection with the subject matter of its report would ignite a fire it could not hope to control and which would permanently disfigure him in the public mind” [67]

As a result, the Judge decided that publication should not be allowed in a form which identifies the Claimant or allowed him to be identified because to do so would amount to a contempt of court.  She continued:

“on the facts I have before me, the press’s freedom to publish and the public’s ‘right to know’ are definitively outweighed by the powerful public interest in criminal justice, not least where very serious charges may be brought, and not least in the interests of obtaining justice for complainants if they are. That, as well as a suspect’s interests, is the public interest specifically protected by the Contempt of Court Act” [70].

In addition, the Judge said that if she had not been sure that publication of the specific information would be in contempt of court, she would have been satisfied that the Claimant would be likely to establish at trial that publication would have amounted to a misuse of his private information.   She adopted the ZXC starting point that there was a reasonable expectation of privacy in criminal allegations in the period between arrest and charge.

The Judge rejected a submission from the BBC that there was “no privacy in wrongdoing” because the case concerned contested allegations of sexual wrongdoing [82].  She took into account the “likely destructive aspect of the proposed publicity” on the Claimant’s reputation and his entitlement to vindicate himself fairly in criminal proceedings [83].  She took into account the evidence of some seepage into the public domain and the rights of the complaints but concluded that

“the circumstances of the case as a whole, I have no hesitation in concluding that the dominant features of the present case are the intimate sexual and relationship nature of the conduct in question, and the likely destructive effect on the Claimant’s human autonomy, reputation and prospects for justice, of immense publicity at this stage in the criminal proceedings. He has a reasonable expectation of privacy” [86].

Finally,  in relation to “public interest”, the Judge held that

“The freedom of the press, in which the public interest is so very strong, is in the end properly abridged in all these circumstances by the powerful public interest in criminal justice both in general and in the particular case of this individual Claimant” [88]

As a result, the Claimant was likely to establish at trial that publication should not be allowed on the ground that it would constitute an unwarranted invasion of his privacy.