In December 2018, we shared the High Court’s decision to favour Sir Cliff Richard’s right to privacy over the BBC’s right to freedom of expression: Congratulations to Cliff.

The Court of Appeal have now endorsed that decision in ZXC v Bloomberg [2020] EWCA Civ 611 and clarified the following:

1. in general, a person has a reasonable expectation of privacy in a police investigation up to the point of charge;
2. information that an individual is the subject of a formal criminal investigation is genuinely of a different character from allegations about the conduct being investigated.

The Tipping Point

In our 2018 article, we asked whether the tipping point (i.e. the point at which the right to freedom of expression outweighs the individual’s right to privacy) should be when an individual is charged.  The Court of Appeal has answered: yes, in general, it is.

The Court of Appeal took the opportunity to remind everyone that underlying this debate is the cornerstone of our criminal justice system: innocent until proven guilty.  However, this decision further opens the door to invasion of privacy at the point of charge.  Sadly, as noted by Lord Justice Simon, there is a human characteristic to assume the worst and the Court of public opinion often decides guilt long before the actual trial.

Why does this matter?

Because reports of criminal allegations can irreparably damage people and their reputations, personal and professional relationships are easily ruined by allegations alone (even if those allegations are baseless).

The test which prosecutors must meet before charging a suspect has a much lower threshold than the standard of proof required to convict a defendant: charging decisions are founded upon a ‘reasonable prospect of a conviction’, rather than the standard of proof at trial, which is whether the jury are ‘sure’ of guilt.  This is to prevent the prosecutor from usurping the role of the jury, but the inevitable result is that a proportion of those charged are never convicted, either because the prosecution ‘drops’ the case or they are acquitted at trial.   Yet the accused’s right to privacy is removed at the charging decision stage, long before guilt is determined.

Turning to Mr ZXC, the Claimant in this case, we can see the potential damage caused by the press naming and shaming him.  Mr ZXC is a US businessman under investigation by a UK law enforcement body for offences including bribery and corruption.  The fact that Mr ZXC is under investigation for such serious offences might be enough to deter people from doing business with him; this would have a detrimental effect on his livelihood.

Mr ZXC had not even been arrested, let alone charged, which is one of the reasons why his claim for breach of privacy eventually succeeded.  But, if he had been charged, would that really justify invading his privacy to the extent that his business relationships and livelihood are irreparably damaged?

The answer, according to the Court of Appeal, is yes, in certain circumstances.

Each case turns on its own facts

Lord Justice Underhill made this point as follows:

“the proposition that a person has a reasonable expectation of privacy in relation to a police (or similar) investigation is not a universal rule and that the circumstances of a particular case may justify a different conclusion” (emphasis added).

Before this case got to the Court of Appeal, the High Court considered the extreme example of an armed bank robber holding hostages during a televised siege.  Most of us would agree that the police releasing the bank robber’s name and the press reporting the siege is a good thing; it would be difficult for the bank robber to argue that he has a reasonable expectation of privacy.

However, the extreme examples are always the easiest to decide.  In summary, the Court of Appeal have only confirmed what we already knew: balancing the right to privacy against the right to freedom of expression is and will always be a difficult conflict to resolve.

Andrew Gilmore is Head of the Criminal Team, specialising in money laundering, fraud, asset recovery and all aspects of criminal law.

James Clark is an associate in Grosvenor Law’s criminal team, where he advises complainants and suspects involved in criminal investigations and proceedings relating to allegations of fraud, bribery, money laundering and related offences.

The contents of our blog posts do not constitute legal advice and are provided for general information purposes only