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16 December 2021

Privacy pre-charge and public interest: where to draw the line

6 mins

A good reputation is hard to earn and very easy to lose, never more so than when an individual is connected to a criminal investigation. The extent to which a person who has not been charged with an offence has a reasonable expectation of privacy has recently been litigated in the Supreme Court in the case of ZXC v Bloomberg LP. Judgment is expected in early 2022.

The ZXC case dates back to 2016 and relates to the publication by Bloomberg of a confidential Letter of Request (LoR) from a UK Law Enforcement Body (UKLEB) to another foreign agency, requesting banking and business records from a company and certain named individuals, in order to assist with their investigation into possible corruption. The article made it clear that one of the named individuals was suspected of criminal activity, and disclosed confidential information relating to the investigation. An application for an injunction by that individual failed, but they did successfully claim for damages for the misuse of their private information.

Bloomberg appealed that decision, but the High Court (ZXC v Bloomberg LP [2020] EWCA Civ 611 (15 May 2020) dismissed the appeal and held that individuals under police investigation, as a matter of general principle, have a reasonable expectation of privacy before charge. It was accepted by all parties that this does not apply post charge.

The issues raised involve two competing (qualified) rights under the European Convention on Human Rights (ECHR):

  • Article 8: The right to respect for private and family life
  • Article 10: The right to freedom of expression

In balancing these two competing rights, the court in ZXC endorsed and approved the two-stage test, as set out in McKennitt v. Ash [2008] QB 73 (CA):

Stage 1: Does the individual have a reasonable expectation of privacy in the relevant information?

Stage 2: If such a reasonable expectation exists, an enquiry and evaluation should be undertaken to establish whether that expectation is outweighed by a countervailing interest (such as the public’s right or need to know).

When deciding on ‘reasonable expectation of privacy’, the court followed the factors as set out in Murray v. Express Newspapers plc and another [2009] Ch 481 at [36]):

  1. The attributes of the claimant
  2. The nature of the activity in which the claimant was engaged
  3. The place in which it was happening
  4. The nature and purpose of the intrusion
  5. The absence of consent and whether it was known, or could be inferred
  6. The effect on the claimant
  7. The circumstances in which, and the purposes for which, the information came into the hands of the publisher

In ZXC the court was particularly concerned with the way in which Bloomberg obtained the confidential material and held that, taking the above factors into account, a reasonable expectation of privacy applied. In doing so, the court affirmed the ruling of Mann MJ in Richard v The BBC & Anor [2018] EWHC 1837 (Ch) (18 July 2018), that a suspect has a reasonable expectation of privacy with regards to a police investigation, and this reasonable expectation can only be displaced for legitimate operational concerns or for reasons of public safety, i.e. when the public interest requires it. For example, the need to release information of a suspect who puts the public at risk while they are at large. Mann MJ was very much alive to the stigma attached to a police investigation and the absolute irremediable and reputational damage subsequent disclosure could have to an individual.

In ZXC (2020) the court approved Mann MJ’s assessment that a right to privacy pre-charge was a legitimate starting point (Simon LJ para 82):

Those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.

The court (para 84) made it clear that an expectation of privacy exists whatever the alleged crime because:

To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion.

It is of note that, when coming to this conclusion, the court (para 79) made reference to the revised College of Policing Guidance 2017, which informs all police forces that a suspect should not be identified to the media prior to the point of charge, save where justified by clear and exceptional circumstances.

Once the court concluded that Stage 1 was met it then moved to Stage 2, and the balancing exercise between the competing qualified rights of Article 8 (for the individual) and 10 (for Bloomberg and the public). Although it was a ‘fine one’ and every case was fact specific, the court held that the public interest in disclosing the confidential information contained within the published LoR was outweighed by the individual’s reasonable expectation of privacy. The fact that the allegations of corruption were already in the public domain without the need to disclose confidential information contained within the LoR, specifically the name of the individual, was a factor the court considered.

It is understood that Bloomberg’s appeal in the Supreme Court will focus on the nature of a police investigation and whether alleged criminal activity is inherently part of an individual’s private life. For those who have been publicly shamed and have had their lives and reputations destroyed by publication of a police investigation pre-charge, a police investigation becomes very much a part (and destruction) of their private life. It will be interesting to see how the Supreme Court approach this matter and where it draws the line between public interest and privacy.

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