Protecting your privacy in early stage investigations

18 September 2020 | Applicable law: England and Wales

Innocent until proven guilty is one of the most familiar legal concepts in the world. But how much can you protect yourself if you find yourself involved in an investigation or case? New case law from the Court of Appeal, 'ZXC' (1), has recently confirmed that suspects under investigation, pre-charge, have a reasonable expectation of privacy. Essentially, this means that if you are under suspicion but have not yet been charged, you have a basis to oppose being named by the press.

We have already seen news media taking extra notice of this ruling and many will have noted that the Conservative MP arrested on suspicion of (but not charged with) rape in recent weeks has remained anonymous.

Methodology behind the case law

The new ruling will cover individuals who are under criminal investigation by HMRC or the National Crime Agency for example. It would also cover those individuals being investigated by the police, like Sir Cliff Richard, who famously sued the BBC for misuse of private information when they named him as the subject of an investigation by the South Yorkshire Police as part of Operation Yew tree. He was never arrested or charged with any offence and the Court held was unlawfully caused harm by being associated publicly with allegations that were without foundation.

The Court of Appeal built on the judgment in the Richard case by affirming that an individual who is subject to investigation by 'an organ of the state' has a reasonable expectation of privacy prior to the point of charge.

There were a number of reasons given why a person under arrest, but not charged, would have a reasonable expectation of privacy in relation to that fact. Publication of an innocent person's arrest can cause irremediable damage to their reputation, given that fact alone could cause substantial publicity. This was considered in the case of Christopher Jeffries (2) whose arrest for the murder of Bristol University student Joanna Yeates led to a protracted campaign of vilification against him in the Press. He was also completely innocent and another individual was later identified as the murderer.

This reasoning was based upon the fact that people often assume there is 'no smoke without fire' in spite of the fundamental legal principle that individuals are innocent until proven guilty. ZXC had not been arrested, let alone charged. It was therefore a legitimate starting point that an individual who was the subject of an investigation had a reasonable expectation of privacy. It was highly relevant that the media's source of the information was a leaked document that was clearly confidential.

The Court noted that being suspected of a crime is damaging, regardless of the nature of the crime. This is sensitive, personal information though the Court did accept 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." This may include, rioting or electoral fraud, for example. It is also likely that in any case where the investigating agency wishes to publicise the matter – for example, because of wanting to appeal for other victims – that this will outweigh the right to privacy.

Once charged, the right to privacy is outweighed by the principle of open justice in court proceedings and, save for specific circumstances such as for juvenile defendants, defendants should expect to be named by the media.

Why is this useful?

Although both cases set out above focus on criminal investigations, we believe it may be relevant to other types of investigations – for example, professional discipline proceedings (e.g. SRA) or in an employment context – thereby saving the privacy and reputation of many individuals who are involved in complex and potentially damaging investigations but ultimately exonerated.

Therefore, if you are notified that you may be named in the press as being under investigation of a crime or other wrongdoing, you may have a claim in misuse of private information. This is hugely significant because it opens up the possibility for your lawyer to pursue interim injunctive relief to prevent publication taking place at all, thereby removing your name and limiting the potential impact on your personal or professional life.

If you would like any further information or advice in relation to the above, please get in touch with our media and reputation team

(1) (ZXC v Bloomberg LP [2020] EWCA Civ 611) (2) (Attorney General v MGN Ltd [2011] EWHC 2074)

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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