He who must not be named…until charged
The Supreme Court also confirmed that once charged there can be no reasonable expectation of privacy.
Bloomberg LP (Appellant) v ZXC (Respondent)  UKSC 5
The claimant, an anonymised businessman (“ZXC”), brought a claim for misuse of private information against Bloomberg LP (“Bloomberg”). It related to an article that they published which named ZXC as under criminal investigation following corruption allegations. It was factually correct that ZXC and his employer were both the subject of a criminal investigation but the information was drawn almost exclusively from a confidential letter of request from a UK law enforcement body.
ZXC had been successful in the High Court and Court of Appeal having been awarded damages of £25,000 and an injunction preventing Bloomberg from further publishing the article or the information within England and Wales. The Supreme Court unanimously rejected Bloomberg’s appeal and held that, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation, supporting the position advocated by the College of Policing within their guidance.
ZXC worked for a company which operated overseas. Both ZXC and his employer were the subject of a criminal investigation by a UK legal enforcement body (the "UKLEB"). During the course of that investigation, the UKLEB sent a confidential letter of request to the authorities of a foreign state seeking documents and information relating to ZXC. The letter expressly requested that its existence and contents remain confidential.
A Bloomberg journalist obtained a copy of the confidential letter of request. They proceeded to publish an article reporting that information had been requested in respect of ZXC and set out the details of the matters in respect of which ZXC was being investigated. ZXC requested that Bloomberg remove the article from its website. They refused and ZXC made an unsuccessful application for an interim injunction. However, not deterred, ZXC issued a claim against Bloomberg for misuse of private information. ZXC claimed that he had a reasonable expectation of privacy regarding the request by the UKLEB.
The first instance judge held that Bloomberg had published private information that was in principle protected by article 8 of the European Convention on Human Rights ("ECHR") and that in balancing ZXC’s rights against those of Bloomberg under article 10 ECHR, the balance favoured ZXC. Bloomberg’s appeal against that judgment was dismissed by the Court of Appeal. The matter proceeded to the Supreme Court where Lord Hamblen and Lord Stephens gave the sole joint judgment.
The court confirmed that misuse of private information is a distinct tort where liability is determined by applying a two-stage test. Stage one is whether the claimant objectively has a reasonable expectation of privacy in the relevant information considering all the circumstances of the case. If so, you move to stage two which involves an assessment as to whether that expectation is outweighed by the publisher’s right to freedom of expression. This involves a balancing exercise between the claimant’s article 8 right to privacy and the publisher’s article 10 right to freedom of expression.
The court considered the stage one test and whether the Court of Appeal was correct to hold that there is a general rule or legitimate starting point that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. Publishing that an individual is being investigated by the police inevitably has the potential to cause significant damage to their reputation despite the fact that they are of course innocent until proven guilty. It is now common practice that the police will not identify those under investigation prior to charge. However, some journalists continue to publish the names of suspects and display their image prior to this stage. See the naming of Mr Paul Gait and Mrs Elaine Kirk-Gait who were arrested following the drone incursions at Gatwick Airport in December 2018 as an example.
Bloomberg’s appeal challenged the general rule. They submitted that given the public’s ability to observe the presumption of innocence, the application of a general rule was flawed because it overstates the extent to which publishing the information will cause damage to the claimant’s reputation. However, the court drew a distinction between the presumption of innocence as a legal concept applicable to criminal trials with a jury and how the general public react to the publication of information that a claimant is under criminal investigation.
Bloomberg also argued that any reliance on the human characteristic to equate suspicion or investigation with guilt on the assumption that there is "no smoke without fire" runs contrary to well-established principles in defamation law, namely, that the ordinary reasonable reader can distinguish suspicion from guilt. However, ZXC did not bring a claim in defamation. The purpose of the tort of misuse of private information is not just to protect an individual from the publication of untrue information. Its purpose is to protect an individual’s private life in accordance with article 8, regardless of the truth or inaccuracy of the information.
Bloomberg further submitted that information should not be protected because it’s reputationally damaging but because it belongs to a part of the claimant’s private life. They stated that did not include the claimant’s business activities in this case. The court viewed this as an unduly restrictive view of the protection afforded by article 8 which can include professional or business activities.
Bloomberg also argued that the lower courts failed to apply the correct legal test at stage one, involving a consideration of all the circumstances of the case, which should have included the alleged corruption. However, the Supreme Court found that whilst the claimant’s status might mean that the limits of acceptable criticism are wider than for a private individual, there was a limit. That factor alone is not in itself determinative and is only part of the stage one analysis.
The court also had to consider whether the Court of Appeal were wrong to hold that, in a case in which a claim for breach of confidence was not pursued, the fact that Bloomberg published information originating from a confidential letter rendered the information private and/or undermined Bloomberg’s ability to rely on the public interest in its disclosure. The court found the judge was right to treat the letter’s confidentiality as a relevant and important factor at both stage one and stage two but neither the judge nor the Court of Appeal held that the letter’s confidentiality itself rendered the information private or prevented Bloomberg from relying on the public interest on its disclosure. However, if information is confidential, that is likely to support the reasonableness of an expectation of privacy.
The judgment of the Supreme Court is essential reading for journalists and supports the general practise that has been advocated for over a decade by the College of Policing following the Leveson inquiry that suspects, in general, have a reasonable expectation of privacy in a police investigation up to the point of charge. The Supreme Court also confirmed that once charged there can be no reasonable expectation of privacy.
The College of Policing, whose guidance on the recording of hate incidents was recently found to have been unlawful by the Court of Appeal in R (Miller) v College of Policing  EWHC 255, deserve credit for the clarity of the guidance which has been provided to those in policing which was cited in the judgment of the Supreme Court.
Journalists will argue that this is an unjust result and a barrier to them doing one of the most essential aspects of their job, namely, putting the conduct of companies and individuals under scrutiny where criminality is suspected or matters of high public interest, as they are arguably doing with the ‘partygate’ probe into gatherings of Government staff held during the COVID-19 pandemic. The judgment was released on the same day as it is being widely reported that the Cabinet Office have asked the police if they will publish the photographs received as part of the 'partygate' investigation amid fears the stills could identify individuals subject to investigation.
Whilst entirely separate to this judgment there will shortly be a minor but important amendment to the Civil Procedure Rules (“CPR”) which is important in the context of naming suspects. An amendment to CPR Part 39.2 (4) will be introduced on 6th April 2022 which enables any person not to be named if the court considers non-disclosure necessary to secure the proper administration of justice and to protect the interests of that person. The rule is no longer restricted to a party or witness. This is applicable where civil claims are advanced for failures in investigations where suspects are named despite not being a party or witness to proceedings.
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