Police enquiries: a private matter?

The UK Supreme Court recently handed down its decision in the important privacy appeal of Bloomberg v ZXC [2022] UKSC 5. This is the high point in an interesting trend of media and privacy cases which consider reporting on criminal investigations.

Background to the appeal

The case began in the English High Court with the anonymised claimant, known as ZXC, seeking both interim and permanent injunctions (and damages) against reporting by Bloomberg, a media organisation. ZXC was the chief executive of a regional division of a publicly traded company, X Ltd. 

Bloomberg had caught wind of the fact that there were initial criminal investigations into the activities of X Ltd in a country over which ZXC’s division had responsibility. This consisted of a letter of request to the foreign country by a UK law enforcement agency (which was not named in the proceedings). No charges had been brought. Bloomberg had published an initial article in autumn 2016 about ZXC being interviewed under caution, but it later acquired a copy of the letter of request and published an article detailing that. This prompted action by the claimant, including seeking the interim injunction (though that was in fact refused).

The High Court, in a final judgment by Nicklin J, considered the substantive question of whether the tort of misuse of private information extended to information about criminal investigations prior to a suspect being charged (ZXC v Bloomberg LP [2019] EWHC 970 (QB). The court ultimately found that there was, in general, a reasonable expectation of privacy in police investigations and that it was appropriate to grant a permanent injunction and award damages of £25,000. This was upheld by the Court of Appeal (ZXC v Bloomberg [2020] EWCA Civ 611; [2021] QB 28). Bloomberg then appealed to the Supreme Court.

Supreme Court: a “legitimate starting point”

Permission having been given to appeal, the Supreme Court heard the case in November and December 2021. The judgment, delivered in February 2022, was a unanimous one with joint reasons given by Lord Hamblen and Lord Stephens.

As the judgment notes, the question in the appeal involved a tension between article 8 and article 10 rights under the ECHR. Referring to earlier case law, it noted the now well accepted two-stage test for misuse of private information, involving first considering whether there was a reasonable expectation of privacy, and secondly whether that was outweighed by a countervailing interest in freedom of expression (para 47).

In considering the first stage of that test, the Supreme Court noted a variety of different factors set out in previous case law and known as the Murray factors (from Murray v Express Newspapers plc [2008] EWCA Civ 446; [2009] Ch 481), which could be used to determine whether the claimant had a reasonable expectation of privacy in the fact of the investigations (paras 49-50). The court then considered how the public interest considerations in publication should be assessed in such a context.

There were three issues raised on the appeal (set out at para 63), but the principal focus of the judgment seems to be on the question of whether the High Court and Court of Appeal had been correct to find there was a general expectation of privacy in relation to investigations prior to charge which would function as a general rule or starting point in the consideration of cases of this type.

In relation to this issue, the Supreme Court was careful to note that a “general rule or legitimate starting point” in relation to the first stage of the test should not function as a presumption or invariable finding that there is a reasonable expectation of privacy (paras 67-68). Each case would need to be assessed on its facts to see whether the expectation could be maintained (para 70).

That being said, such a starting point was an appropriate approach given the serious reputational impact of the disclosure of criminal investigations against a person prior to charge (para 72). As the Supreme Court affirmed, once a person is charged with an offence, there can no longer be a reasonable expectation of privacy (para 77). Such an approach, it added, also accords with both policing guidance and previous case law (paras 90-99).

As a result, and after considering the other issues raised, the Supreme Court upheld the earlier judgments and dismissed Bloomberg’s appeal.

Further thoughts

This case follows on from what occurred in Richard v BBC [2018] EWHC 1837 (Ch); [2019] Ch 169), in which substantial damages were awarded against the BBC following its reporting of a search by police of Sir Cliff Richard’s home. That search occurred prior to any charging decision and, in the end, he was never actually charged. That case never went beyond the High Court, but the Supreme Court’s decision in Bloomberg v ZXC would seem to validate the approach of the High Court in that case and endorse this overall trend in evaluating privacy when reporting on criminal investigations in their early stages.

While it will always be fact-specific, given the enquiries required at the first and second stages of the test for misuse of private information, the case seems to establish that reporting on criminal investigations prior to charging will generally run the risk of breaching privacy. This decision has been greeted with some scepticism by the media and there will no doubt be future cases seeking to rely on particular facts or public interest considerations in which this starting point will likely be challenged. Recent discussions about the use and misuse of UK privacy and defamation laws also mean that this is likely to remain a heavily debated area.

There are also likely to be questions about whether this approach would extend to other areas of regulatory action (such as Financial Conduct Authority or Competition & Markets Authority investigations), and to professional disciplinary actions, which will no doubt play out in future.

Scottish parallel?

This was an English case and so the result is not, of course, binding on the Scots courts. The law of privacy is still something of a moving target in Scotland, at least insofar as free-standing civil actions are concerned. The ZXC v Bloomberg decision must, however, be seen as a further endorsement of the availability of a civil action for publicity being given to private facts (separate obviously from actions for breach of pre-existing relationships of confidence). Whether this case will be useful in creating a foundation for a clear, equivalent delict in Scots law, or as a support for greater protection of private information through other channels such as injuria, remains to be seen.

In terms of Scots law, however, it also raises a further interesting question indigenous to Scots criminal procedure. Charging is seen as the tipping point in ZXC v Bloomberg and Richard. In the English context, charging decisions in the majority of cases are made by the Crown Prosecution Service (“CPS”) on referral from the police. Only after the CPS has made a decision on the case is the suspect formally charged (Director’s Guidance on Charging – Sixth Edition, Crown Prosecution Service). In Scotland, a police decision to “charge” is in fact a decision that they will refer the case to the Crown Office & Procurator Fiscal Service (“COPFS”) for it to decide what further action to take. There are a wide range of options available to COPFS other than instituting proceedings.

So, in England & Wales, charging involves at least an initial cross-check of the police’s decision to that stage before someone is charged. Is this involvement of the CPS one of the reasons that the Supreme Court regarded charging as the tipping point for privacy?

If so, that involvement leads to some interesting questions for Scots lawyers. Should a suspect in Scotland accordingly have privacy rights even post-charge, up until a decision is made by COPFS as to whether it is correct to prosecute in the particular case?  

This work by Fergus Whyte is licensed under CC BY-NC-SA 4.0