Pre-charge Privacy

[Image credit: “Privacy” by g4ll4is is marked with CC BY-SA 2.0  ]

In a recent case, the Supreme Court considered the issue of privacy. The Court 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.

ZXC (as he was referred to in the case) was a US citizen working for a company, X Ltd, overseas. He brought a claim for misuse of private information arising out of an article published by Bloomberg in 2016 in relation to the activities of X Ltd. The activities were in a particular country for which ZXC’s division was responsible. These activities were the subject of a criminal investigation by a UK law enforcement body (UKLEB). During that investigation, the UKLEB sent a confidential letter to authorities in the foreign country requesting information and documents relating to ZXC.

Bloomberg, a media company, somehow managed to obtain a copy of the letter and used it to form the basis of the article referred to. The article detailed the matters in respect of which ZXC was being investigated. Bloomberg refused to remove the article from its website, and ZXC unsuccessfully sought an interim injunction. He then brought a successful claim against Bloomberg for misuse of private information.

ZXC was awarded damages of £25,000, and the Court of Appeal dismissed Bloomberg’s appeal. Permission to appeal was then granted by a panel of the Supreme Court, leading to this recent judgment.

The activities and investigation
UK Parliamentarians, amongst others, had publicly questioned the integrity of various transactions involving X Ltd, including the transactions in the foreign country. The UKLEB focused on allegations of bribery, fraud and corruption, and the investigation is ongoing.

Mutual Legal Assistance
The letter sent by the UKLEB is known as a Letter of Request; it is a request for mutual legal assistance (MLA). It is the usual means of requesting legal assistance from another state about an investigation as per The UN Convention against Corruption.

Such a request is required to include:
(i) the subject matter and nature of the investigation to which the request relates, and the name and functions of the authority conducting the investigation;
(ii) a summary of the relevant facts;
(iii) a description of the assistance sought and details of any particular procedure that the requesting state party wishes to be followed;
(iv) where possible, the identity, location and nationality of any person concerned; and
(v) the purpose for which the evidence, information or action is sought.

The Guidelines in the UK covering these requests specifically refer to confidentiality, stating:

“It is usual policy for central or executing authorities to neither confirm nor deny the existence of an MLA request, nor disclose any of its content outside government departments, agencies, the courts or enforcement agencies in the UK without the consent of the requesting authority…”

The Guidelines go on to say that requests are not to be shown or copied to any person, which happened in this case. The Court of Appeal has previously addressed the issue of confidentiality of the letters and commented that there are very good reasons for maintaining the confidentiality of such requests, such as – national security; investigations at an early stage; which individuals are under suspicion; and a proper reluctance to disclose what lines of inquiry are being followed.

The letter in this case
The letter was headed ‘confidential’ and sought banking and business records in relation to X Ltd, ZXC and other individuals. It is also stated the investigation was at an evidence-gathering stage, and no one had been charged. Under the heading of confidentiality, the UKLEB set out the reasons that confidentiality was required, including the concern that if the suspect became aware of the investigation, he might take steps to frustrate it.

The article
The judge found that the article contained information drawn almost exclusively from the letter after a Bloomberg journalist obtained a copy of it. He also found that the letter had been given to the journalist in what must have been “a serious breach of confidence by the person who originally supplied it”.

A striking feature of the case was said to be the lack of any recognition of the highly confidential nature of the letter or any assessment of the potential consequences of breaching that confidentiality or any weighing up of this against the perceived public interest in publication. The evidence also strongly suggested that Bloomberg’s editorial process failed to appreciate the article potentially engaged the privacy interests of ZXC.

The appeal
The issues arising on the appeal were:
• Whether the Court of Appeal was wrong to hold that there is a general rule that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
• Whether the Court of Appeal was wrong to hold that, in a case where a claim for breach of confidence was not pursued, the fact that the information published by Bloomberg about a criminal investigation 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.
• Whether the Court of Appeal was wrong to uphold the findings of Nicklin J that the claimant had a reasonable expectation of privacy in relation to the published information complained of, and that the article 8/10 balancing exercise came down in favour of the claimant.

The judgment
The Supreme Court found no error in the approach of the Court of Appeal, so there were no grounds for interfering with the decision in relation to the balancing exercise.

The Supreme Court 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.

The importance of the decision
The decision was unanimous and is quite clear. The obvious consequences are in respect of any person who is arrested, interviewed or even just suspected of a criminal offence, and their right to privacy before they are charged. A comparison can be taken to the case of Cliff Richard, which is mentioned in the judgement. He was the subject of an investigation by the police; a BBC reporter had found out about the investigation and was given advance notice of a search of Richard’s home address. Extensive BBC coverage was given to the search and Richard claimed substantial damages for the police and BBC violating his rights both in privacy and under the Data Protection Act.

Whilst it is argued that publicity can assist in alerting other victims to an investigation, it can also be highly damaging to a suspect. Cliff Richard said that the publicity radically affected his life and finances. Certain allegations, such as sexual offences, carry an awful lot of stigma, and people may say there is no smoke without fire. There is definitely an argument to respect suspects’ privacy to prevent speculation and negative consequences for those suspects, especially when they are not subsequently charged with any offence.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact any member of our vastly experienced Criminal Defence team, for assistance with any criminal law related matter.

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