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Reasonable expectation of privacy for those under police investigation

Reasonable expectation of privacy for those under police investigation

This article notes the recent Court of Appeal decision in ZXC v Bloomberg LP [2020] EWCA Civ 611 and the Court’s finding that the starting point is that suspects under investigation, pre-charge, have a reasonable expectation of privacy.

The facts:

The case concerned an article published by the Defendant in relation to the Claimant. The Claimant was a Chief Executive in a company which operated overseas. There were concerns regarding certain transactions involving the company and an investigation was brought by the United Kingdom Legal Enforcement Body (‘UKLEB’).

In an earlier article the Defendant had stated that the Claimant had been interviewed by UKLEB as part of the investigation, this was not the article subject to action. That related to a later article which detailed UKLEB’s investigation into the Claimant and, specifically, that the Claimant was considered to have committed fraud by false representation and been involved in handling the proceeds of crime. These details had emerged ‘almost exclusively’ from a confidential Letter of Request sent by UKLEB to the Competent Authority of the Foreign State – a common procedure used for mutual legal assistance between States for investigating and prosecuting criminal offences. Such documents are considered highly confidential and the Letter in this case explicitly set out that the extent and detail of the investigation was confidential (the fact of the investigation into the company itself was public).

The Claimant brought an action for misuse of private information against the Defendant.

The issue before the Court was whether, and to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities.

The test:

This case involved two competing rights under the European Convention on Human Rights: Article 8 (Right to respect for private and family life); and Article 10 (Right to freedom of expression). The Court adopted the test as set out by Buxton LJ in McKennitt v. Ash [2008] QB 73 (CA) at [11] and summarised the two stages:

stage one of the enquiry is whether a claimant has a reasonable expectation of privacy in the relevant information? If the answer is yes, stage two involves an enquiry and evaluation as to whether that expectation is outweighed by a countervailing interest’.

This article focuses upon the Court’s judgment in relation to the first stage.

Reasonable expectation of privacy:

As the Court noted, before stage one is engaged there must be a ‘certain level of seriousness’ to the threat to the individual’s personal autonomy. Once this threshold is passed the question under stage one is a broad one and takes into account the following circumstances as set out at [45]:

  1. the attributes of the claimant;
  2. the nature of the activity in which the claimant was engaged;
  3. the place at which it was happening;
  4. the nature and purpose of the intrusion;
  5. the absence of consent and whether it was known or could be inferred;
  6. the effect on the claimant; and
  7. the circumstances in which and the purposes for which the information came into the hands of the publisher.

It should be noted that the test is an ‘objective assessment of what a reasonable person of ordinary sensibilities would feel if he or she were placed in the same position as the claimant and faced with the same publicity.

The Court noted the decision in Richard v BBC [2019] CH 169 – in which it was accepted as a matter of ‘general principle’ that a suspect has a reasonable expectation of privacy in regards to a police investigation. The Court endorsed the finding in that case that the right to privacy was merely the ‘legitimate starting point’.

In this case the Court held explicitly that: ‘those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion.’

The reasoning was based upon that people would assume there was ‘no smoke without fire’ and the ‘fundamental legal principle’ that individuals are innocent until proven guilty.

It was further highlighted that this expectation would not, generally, be dependent upon the crime being investigated or the public characteristics of the suspect. Specifically, the Court stated that there was ‘little justification for a hierarchy of offences giving rise to suspicion’.

Limitations to the reasonable expectation:

It is important to emphasise the limits of the Court’s ruling. Firstly, it was accepted as ‘common ground’ in the case that when someone is charged with an offence there could be no reasonable expectation of privacy.

Secondly, the Court emphasised that the expectation is not invariable: it is not a ‘universal rule’ and is merely a ‘proposition’. It was stressed that each case turns on its facts. This is significant and gives rise to the following:

  1. there is no set weight that will be attributed to the reasonable expectation of privacy in a given case;
  2. in particular it was noted that ‘there may be some cases where the reasonable expectation of privacy may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration [such as in cases of rioting or electoral fraud]’. As the Court noted, where the expectation is reduced then this will bear upon the Court’s analysis under stage 2;
  3. however, the fact that there are some features which may take the case outside of the ‘basic paradigm’, where a suspect would have a reasonable expectation of privacy, may not be sufficient to negate the finding that the Claimant’s article 8 rights are engaged (as was found in this case);
  4. where the information is available in the public domain the expectation may be reduced or extinguished;
  5. a suspect’s name may be released for ‘legitimate policing reasons’ and in such circumstances an individual may face difficulty in establishing the reasonable expectation stage.

Nathan Davis

Pupil Barrister