The recent case of Sir Cliff Richard v BBC has sent a clear message that individuals have a right to privacy at the investigation stage of a police enquiry. This has sent shockwaves through media organisations who view it as an infringement of their right to publish the truth that a named individual is being investigated by police.
South Yorkshire Police were investigating an allegation against Sir Cliff Richard of historical sexual abuse made by a person who has remained unidentified. The BBC got wind of the investigation and used that information to persuade the police to allow them to be notified of when the search of Sir Cliff’s home was to take place. The BBC deployed a helicopter to the scene and filmed the police entering Sir Cliff’s property and broadcast the police searching inside his apartment.
The starting point for Mr Justice Mann was to determine whether or not Sir Cliff had a legitimate expectation of privacy in relation to the fact of the police investigation and the fact of the search of his apartment.
Justice Mann was referred to Article 8 (Right to respect for private and family life) and Article 10 (Freedom of expression) brought into force by the Human Rights Act 1998. He explained that where two rights conflict the court had to carry out a balancing and weighing act to determine which right predominates in the case in question.
After reviewing the facts in this case and the authorities cited to him Justice Mann concluded that “…as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached to it. ”. He then went on to award Sir Cliff £210,000 in damages and the BBC has agreed to pay £850,000 towards Sir Cliff’s court expenses.
Justice Mann is clearly distinguishing between the presumption of innocence in the eyes of the law whereby an individual ought to be treated in a manner consistent with that innocence (see Allen v United Kingdom 25424/09) and the public perception that there is no smoke without fire.
Implications for Media Organisations
The result is that media organisations will now have to consider carefully at what stage and in what circumstances they can name an individual who is the subject of a police investigation. Each case will have to be assessed on its’ own merits before an individual can be named at the investigation stage. Certainly, based on this case, if anyone is under investigation for an offence the disclosure of which may do them irreparable harm then it is likely that their identity will have to be kept from the public. The exception will only arise where there is a danger to the public or there is clearly no risk of damage to the reputation or risk to the individual concerned.
The Next Stage?
Why should the right to privacy only extend to the investigation stage of police activity? What about the situation where someone is charged with an offence such as sexual abuse of a child and they are found not guilty? If the public is unable to accept the principle that an individual is innocent until proven guilty should we not only publish the names of those persons found guilty after they have been found guilty by a court?
Justice Mann did not have to address those issues but he may well have opened the door to future applications for more extensive reporting restrictions on the basis that the general public.
The risk of extending the right to privacy could result in an uninformed public and a police force that can, by design, do what it likes without fear of the scrutiny of the press.
John Kydd is a specialist Litigation Solicitor advising media organisations across Scotland. We are always delighted to talk without obligation about whether we might meet your needs. Call John on 01382 229111 or email email@example.com