22 February, 2022
The Supreme court has ruled that "suspects have a right to privacy and cannot be named by the press before they are charged".
The case concerned Bloomberg who published an article about a prominent US citizen and chief executive, of a prominent business, alleging that they were the subject of an international investigation into corruption, bribery and fraud. Bloomberg had obtained a copy of letter sent from a UK law agency to a foreign state's authorities asking for information to assist in a criminal investigation. The individual claimed damages for a breach of privacy. The High court awarded them £25,000 for the distress it had caused. The case went to the Court of Appeal where the finding was upheld. Bloomberg appealed to the Supreme court and their appeal was dismissed.
The Times reports on "the scales between privacy and freedom of expression"
The case addresses some interesting issues concerning the negative and sometimes devastating affect an arrest can have on an innocent person's reputation, when there is a publication they have been arrested or are being investigated by the police or other authority.
The College of Policing sets out guidance on Media Relations and recognises there are risks disclosing the names prior to the point of charge.
The Office for Police Conduct ("IOPC") who investigated police conduct in relation to Carl Beech's allegations of abuse by prominent individuals, reported that "Naming a suspect before charge is a major step and should only be undertaken in exceptional circumstances and for a clear policing purpose."
There are always exceptions to this, and rightly so. If there are clearly identified circumstances, such as an immediate risk to the public, a threat to life, the prevention or detection of crime or a matter of public interest and confidence, then details can and should be released.
Getting the balance right can be difficult.
A person under criminal investigation has an expectation of privacy in relation to that investigation until they are charged. They are innocent until proven otherwise, however the publication of an arrest or investigation, often causes people to assume the worst (there is no smoke without fire)
On the other hand, the press, justifiably argue, the public has a right to know. There is the "freedom of expression" Without it the press would be unable to play its vital role of 'public watchdog. The information may already be in the public domain and no longer considered private. The individual who holds others hostage at gun point and is then either arrested or surrenders could hardly argue they had a right to privacy until charged. Once charged with a criminal offence, the information becomes public and the right to privacy is lost.
The Supreme court held that "a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation and that in all the circumstances this is a case in which that applies and there is such an expectation."
Exceptions to this right could be raised on the grounds that the Bloomberg case related to the publication of a confidential Letter of Request that specifically referenced to the fact it should remain confidential, so as not to prejudice the criminal investigation.
The press are clearly concerned about this decision and how it will impact on the freedom of speech.
On the other hand, it opens the possibility that more individuals will be able to claim damages when their reputations are tarnished by the publication of arrests and investigations that do not result in charges.
For more information contact John Bennett in our Data Breach Claims department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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