No summer holiday for the BBC

An accused should prima facie enjoy a reasonable expectation of privacy during an investigation.

Sir Cliff Richard OBE v (1) BBC (2) Chief Constable of South Yorkshire (2018), High Court Chancery Division (Mann J)

Executive summary

An accused should prima facie enjoy a reasonable expectation of privacy during an investigation.

Background

This case arises from the police investigation into historic child abuse claims against Sir Cliff Richard. The investigation was widely reported with extensive media coverage of the search.

A BBC journalist had been contacted by a source and informed there was a police investigation into Sir Cliff. He met senior officers and suggested he had enough information to publish a story (something that the trial judge held was an exaggeration). This concerned the officers and so they agreed to give the journalist advance notice of the search if the story was not published at that stage. When the search did take place, the BBC aired extensive coverage including helicopter footage. The trial judge described that coverage as sensationalist.

Sir Cliff was cleared in the investigation and commenced proceedings against the BBC and South Yorkshire Police alleging breach of his privacy. South Yorkshire Police admitted liability and agreed to pay Sir Cliff damages of £400,000. The BBC fought the claim.

The decision

The key issue was the right to privacy during the police investigation. The trial judge ruled that there was a reasonable expectation of privacy following the judgement of Garnham J in ZXC v Bloomerg LP. There might be rare exceptions but that was the general rule.

He noted comments to that effect by Sir Brian Leveson, in his report following his inquiry into the press, that there should be an expectation of privacy and College of Policing guidance to the same effect. The judge also referred to the report by Sir Richard Henriques into the Metropolitan Police’s handling of claims of historic sexual abuse. He observed that celebrities were particularly vulnerable to unfounded allegations and that allegations of this kind inevitably caused a great deal of turmoil and emotional distress.

Mann J also weighed Sir Cliff’s right to privacy under Article 8 of the European Convention on Human Rights against the freedom of the press and the public interest in reporting the serious matter of sexual abuse. Once again he found in Sir Cliff’s favour, mindful of the stigma attached to such allegations and the sensationalist nature of the reporting.

General damages were assessed at £190,000 and aggravated damages at £20,000. Those damages were apportioned 65:35 in favour of the police, reflecting the judge’s view that the BBC’s actions were the more potent cause of the damage.

Comment

A suspect’s identity should not normally be revealed by the police in an investigation. The police’s hand was forced in this claim because the reporter had indicated he was ready to write his story and they wanted to prevent publication. £190,000 was a high figure for general damages reflecting the distress caused and manner of presenting the story. The claim was for breach of common law privacy so the restrictions attached to damages under Article 8 of the Human Rights Act did not apply.

The judge regarded the breach of privacy as serious so it followed that £20,000 should be awarded as an aggravated figure. The judge did not take issue with the fact that the case had been defended but did take a dim view of the BBC’s nomination of its own coverage for a press award. An appeal is under consideration.

If you have any questions or would like more information about our update, please get in touch with your usual Weightmans contact, or John Riddell (Consultant).

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