Supreme Court finds in favour of right to privacy for those subject to criminal investigation

The Supreme Court has confirmed that an individual who is the subject of a criminal investigation will, in general, have a reasonable expectation of privacy in respect of the investigation until he or she is charged: Bloomberg LP v ZXC [2022] UKSC 5.

This decision follows a number of first instance decisions to similar effect, and accords with guidance published by the College of Policing and the Independent Office for Police Conduct.

The Supreme Court emphasised that the information in this case related to an investigation by an organ of the state, and included information as to that body's "suspicions, assessments, and preliminary conclusions to the disfavour of the claimant". The appeal did not concern the publication of information about an individual’s wrongdoing resulting from the media's own investigations, which would be a distinct situation. It is also important to note that, even in respect of information derived from a police or regulatory investigation, each case will turn on its facts.

While this judgment will be welcomed by those subject to police or regulatory investigations, it has (predictably) been the subject of fierce criticism by the media. It remains to be seen whether the government's planned overhaul of human rights legislation, in the form of a Bill of Rights, will seek to address the conclusions of the Supreme Court in this case.

Background

The claimant was an American citizen ("ZXC") who worked for a company with operations in a number of different jurisdictions. He and his employer became the subject of a criminal investigation from a UK Law Enforcement Agency (the "UK Agency"). As part of that investigation, the UK Agency sent a Letter of Request to a foreign government, which sought documents and information relating to ZXC (the "Letter"). The Letter explicitly stated that its contents should remain confidential in order not to prejudice the investigation.

Bloomberg became aware of the Letter. It published an article drawn almost exclusively from information within the Letter, detailing the information sought by the UK Agency in relation to ZXC and the matters for which he was being investigated. It refused to remove this article when asked to do so by ZXC.

The claimant was successful in his claim for misuse of private information at first instance, and that decision was upheld by the Court of Appeal. Bloomberg appealed to the Supreme Court.

Decision

The tort of misuse of private information requires the court to apply a two-stage test, which entails balancing the claimant's right to privacy under Article 8 of the European Convention on Human Rights ("ECHR") against the publisher's right to freedom of expression under Article 10 of the ECHR. By section 12 of the Human Rights Act 1998, the Court is required to have "particular regard" to the right to freedom of expression under Article 10 and, where the claim relates to journalistic material, the court must take account of the extent to which (a) the material has, or is about to, become available to the public; and (b) it is, or would be, in the public interest for the material to be published.

On the facts of the present case, the court therefore had to determine:

1. Objectively assessed, did the claimant have a reasonable expectation of privacy, considering all of the circumstances of the case, taking into account the factors laid out in Murray v Express Newspapers plc [2008] EWCA Civ 446 (the "Murray Factors")? (These are: i) the attributes of the claimant; ii) the nature of the activity in which the claimant was engaged; iii) the place at which it was happening; iv) the nature and purpose of the intrusion; v) the absence of consent and whether it was known or could be inferred; vi) the effect on the claimant; and, vii) the circumstances in which and the purposes for which the information came into the hands of the publisher.)
2. If so, was that expectation outweighed by Bloomberg's right to freedom of expression?

At first instance, ZXC successfully argued that he had a reasonable expectation of privacy in relation to: (a) the fact that information relating to him had been requested by the UK Agency; and, (b) the details of the matters that the UK Agency was investigating as they related to him. He also established that his right to privacy in respect of that information outweighed Bloomberg's right to freedom of expression.

The Court of Appeal upheld this decision. It held that, as a general rule, an individual under criminal investigation has a reasonable expectation of privacy in relation to that investigation until he or she has been charged, at which point the principle of open justice prevails.

Bloomberg's appeal to the Supreme Court challenged this "general rule" or "legitimate starting point", advancing four arguments:

1. First, that, due to the public's ability to recognise the criminal principle of an individual being "innocent until proven guilty", such a wide-reaching general rule (as elucidated by the Court of Appeal) should not be applied – it overstated the impact of the information's publication on the respondent's reputation.

The Supreme Court noted that the presumption of innocence was a legal presumption applied in criminal trials. It was not, however, the appropriate standard to apply in the context of the tort of misuse of private information, which acknowledged an individual's right to make and develop relationships with other people, particularly those in one's "inner circle". The court held that the freedom to do so would be damaged by the suspicion deriving from the publication of information that that person was under criminal investigation. The degree of reputational harm caused by such publication would depend on the circumstances, but it could be "profound and irremediable".

2. Second, that it was wrong to assume that the public would presume guilt in relation to the publication of material that indicated that an individual was under "suspicion of" or subject to an "investigation into" criminal activity on the basis that there is "no smoke without fire". Bloomberg argued that this ran contrary to established principles in defamation law which proceed on the basis that the ordinary reasonable reader is not "unduly suspicious" and is capable of distinguishing "suspicion from guilt".

The Supreme Court noted that the tort of misuse of private information is distinct from that of defamation and held that it would be inappropriate to imply the concept of the ordinary reasonable reader into the tort of misuse of private information. Meaning was not an issue in such claims, contrary to the position in defamation claims. Rather, the factual enquiry in privacy claims required an assessment of the impact of the publication on the Claimant's Article 8 rights, regardless of the truth or falsity of the information.

3. Third, that information should only be considered private where it relates to "a part of the claimant’s life which is of no-one else’s concern" and not where it is reputationally damaging.

The Supreme Court held that this constituted an unduly restrictive view of Article 8. The effect of a publication on an individual's reputation is one of the circumstances that should be taken into account by the court as part of its balancing exercise. It concluded that, if sufficiently serious, an attack on an individual's reputation could prejudice an individual's enjoyment of their Article 8 rights.

4. Fourth, that the lower courts had not applied the proper legal test at stage one (reasonable expectation of privacy) on the grounds that they had not considered "all the circumstances of the case". It argued that, in considering the Murray Factors (one of which is, "the nature of the activity in which the claimant was engaged"), the lower courts had adopted the wrong approach – they interpreted the nature of the claimant's activity as being the subject of the investigation by the UK Agency, rather than his alleged criminal conduct. It argued that, had the lower courts adopted the latter (correct) approach, they would have found differently.

The Supreme Court held that the lower courts had given due consideration to all the elements of the Murray test. They stressed that the Murray Factors are not exhaustive, and that their respective weighting will vary from case to case. In any case, it held that the "nature of the activity… was not of particular significance." The court had taken account of the claimant's status as a businessman employed by a large public company - which might mean that the limits of acceptable criticism are wider than for a private individual, but not without limit.

The Supreme Court thus dismissed the grounds of appeal advanced by Bloomberg.

It went on to consider an issue raised before the Court of Appeal in relation to the Letter being marked "confidential". The court was asked to consider whether the Court of Appeal had been wrong to hold that, in a case in which a claim for breach of confidence was not pursued, the fact that information published by Bloomberg about a criminal investigation had originated from a confidential law enforcement document rendered the information private and/or undermined Bloomberg’s ability to rely on the public interest in its disclosure.

The court held that the Court of Appeal had not been in error: while confidentiality was an important factor, the confidentiality did not in itself render the information private for the purpose of Article 8 ECHR nor did it prevent Bloomberg from relying on the public interest in its disclosure, and neither of the lower courts had found that it had. The confidentiality of the Letter was however a fact that the Court of Appeal was entitled to take into account in determining whether there existed a reasonable expectation of privacy.