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18 February 2022

The right to privacy prevails for uncharged suspects

3 mins

Suspects under investigation have a reasonable expectation of privacy, the Supreme Court has confirmed this week in Bloomberg LP (Appellant) v ZXC (Respondent) [2022] UKSC 5, in which it upheld an earlier decision to the same effect in The Court of Appeal.

The effect of the Supreme Court’s decision in ZXC is that suspects who are under investigation, but not charged with any offence, have a right to privacy and may not be identified in the media, unless the media’s right to freedom of expression outweighs their right to privacy. The decision applies to all investigations, whether by the police or special prosecutors such as the Serious Fraud Office (SFO) or the Financial Conduct Authority (FCA).

This decision, from the UK’s highest court, is welcome reassurance for suspects, some of whom may be under investigations for years without ever being charged, that they can rely on a right to privacy, which ought to prevail unless there is some particular reason to displace it. When freedom of expression might take priority is likely to be very case/fact-specific, and it is clear that the nature of the offence alone will be insufficient justification to identify a suspect.

Many people can get caught in the net of a criminal investigation, which may drag on for months or years and never result in them being charged. Yet if a person is identified publicly as a suspect, the reputational damage can be devastating not only for the person concerned, but also their family and business. Indeed, as the Court of Appeal had acknowledged, it can be human nature to assume the worst, that there is no smoke without fire, and to overlook the principle that a person accused of an offence is deemed innocent until proven guilty.

Journalists will have to find a compelling justification, over and above the nature of the offence in itself, if contemplating identifying a suspect who has not been charged. The circumstances when this might arise may be few and far between. A couple of theoretical examples were given in the earlier High Court proceedings, of when the police release the name of a suspect for legitimate policing purposes, or a well televised siege/hostage situation.

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