Cliff Richard v BBC – Part I – Police investigations and reasonable expectations of privacy

I just got to tell someone about the way I feel,
Shout it from the rooftop to the street,
And if I spread the word please tell me who’s it gonna hurt …

Sir Cliff Richard OBE in Sydney 2013 (element)1. Introduction
The words above are the opening lines of “Can’t Keep this Feeling In“, released in 1998 by Sir Cliff Richard [Sir Cliff], pictured left in a mellow pose at a concert in Sydney, Australia in February 2013. In August of the following year, arising out of an ongoing investigation into allegations of historic sex abuse, the South Yorkshire Police [the SYP] searched a property belonging to him in Sunningdale, Berkshire; and – on foot of a tip off from the SYP the previous month – the British Broadcasting Corporation [the BBC] gave the allegations and the search prominent and extensive television coverage. Sir Cliff was never arrested or charged; and, in June 2016, the Crown Prosecution Service [the CPS] decided that Sir Cliff would not face any charges. This decision was re-affirmed by the CPS the following September, following a full review of the evidence.

Meanwhile, in July 2016, Sir Cliff commenced legal proceedings against the SYP and the BBC, arguing that SYP’s leak to the BBC in July 2014, and the BBC’s coverage of the raid in August 2014, invaded his privacy and breached his data protection rights. Before the trial, SYP admitted liability and agreed to pay Sir Cliff £400,000 damages, plus costs (see Richard v BBC [2017] EWHC 1648 (Ch) (26 May 2017)). Earlier this week, in Richard v BBC [2018] EWHC 1837 (Ch) (18 July 2018) Mann J held that that Sir Cliff succeeded in his privacy claim against the BBC and awarded him £210,000 in general damages (£190,000 in compensatory damages, and £20,000 in aggravated damages), with some items of special damages to be decided at a future date. Because of the success of the privacy claim, Mann J held that he did not need to consider the data protection point.

There are three areas of interest in Mann J’s judgment: first, whether Sir Cliff had a reasonable expectation of privacy, having regard to Article 8 of the European Convention on Human Rights [the ECHR]; second, whether the BBC nevertheless were entitled to broadcast, having regard to Article 10 ECHR; and third, the quantum of damages awarded. I will deal with the question of Sir Cliff’s reasonable expectation of privacy in this post; and I will deal with the other two issues in subsequent posts [update: the post on the BBC’s Article 10 rights is here].

2. Article 8 ECHR and Sir Cliff’s Reasonable Expectation of Privacy
In the earlier Irish case of Hanahoe v Hussey [1998] 3 IR 69, [1997] IEHC 173 (14 November 1997) Kinlen J awarded Ir£100,000 damages (worth approximately €185,000 or St£165,000 today) against the Commissioner of An Garda Síochána (Ireland’s National Police and Security Service) for a similarly unjustified leak of a similarly high-profile search. Kinlen J held that the leak was an “outrageous interference” with the defendants’ privacy rights ([1997] IEHC 173 [69]) but awarded damages for misfeasance in public office as a species of negligence ([1997] IEHC 173 [67], [73]). The SYP’s settlement, and this week’s judgment by Mann J, show that the direct protection of privacy interests has evolved sufficiently that their indirect protection via other torts is no longer necessary.

As with the phone hacking cases (see Mann J at first instance; see also the Court of Appeal), Sir Cliff’s case was commenced in the Chancery Division of the High Court, presumably reflecting the fact that the modern English protection of privacy interests began, under the impetus of Article 8 of the European Convention on Human Rights, by pressing the equitable claim for breach of confidence into service. The process continued by shearing that claim of limitations that affected its ability to protect privacy interests, before transmuting it into a claim for misuse of private information separate from breach of confidence. This claim is now characterised as a tort. So, in the present case ([2018] EWHC 1837 (Ch) [264]), Mann J referred to “the English tort which essentially gives effect” to Article 8 ECHR. This tort turns on on whether the claimant has a reasonable expectation of privacy that has been infringed by the defendant (see Campbell v MGN Ltd [2004] 2 AC 457, [2004] UKHL 22 (6 May 2004) [21]-[25] (Lord Nicholls), [134]-137] (Baroness Hale); Kinloch v HM Advocate [2013] 2 AC 93, [2012] UKSC 62 (19 December 2012) [18]-[21] (Lord Hope); R (Catt) v Commissioner of Police of the Metropolis [2015] 1 AC 1065, [2015] UKSC 9 (4 March 2015) [4]-[5] (Lord Sumption); Khuja (formerly PNM) v Times Newspapers [2017] UKSC 49 (19 July 2017) [21], [26], [34](1), [34](3) (Lord Sumption)). For this test in the present case ([2018] EWHC 1837 (Ch) [231]), Mann J cited Clarke MR for the Court of Appeal in Murray v Big Pictures (UK) Ltd [2009] Ch 481, [2008] EWCA Civ 446 (07 May 2008) [36] as affirmed by Lord Toulson in In re JR38 [2016] AC 1131, [2015] UKSC 42 (1 July 2015) [60], [88]:

… the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.

Mann J commented that the last two criteria (circumstances and purposes) were “very relevant” to matter in front of him ([2018] EWHC 1837 (Ch) [231]). He held that “on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation” (ibid, [248]), but he stressed that this was only prima facie (ibid, [250]), and not invariable: “there may be all sorts of reasons why, in a given case, there is no reasonable expectation of privacy, or why an original reasonable expectation is displaced” (ibid, [251]). He therefore held that Sir Cliff was entitled to this prima facie reasonable expectation of privacy as against SYP both in relation to the investigation and in relation to the search, and that there was nothing in his public status, to deprive him of it (ibid, [256]). The BBC submitted that, once the material gets into the hands of a media organisation such as themselves, the position changes, but Mann J rejected that submission (ibid, [259], [262]): what matters is the substance of what is protected by means of the reasonable expectation of privacy, and the substance of the protection, and that is the same against both the SYP and the BBC.

It is an overstatement to say that the authorities clearly established that a suspect has a prima facie reasonable expectation of privacy in relation to a police investigation. At best, they are equivocal on the issue. Indeed, it could even be fairly concluded that they have, in fact, declined to lay down such a rule. In Spelman v Express Newspapers [2012] EWHC 392 (QB) (24 February 2012) [52] Tugendhat J commented that “even if there were pending criminal proceedings, that might not suffice to prevent any pre-trial disclosure about the case”. In Hannon v News Group Newspapers Ltd [2014] EWHC 1580 (Ch) (16 May 2014) [99] Mann J himself observed that “the question of the confidentiality or privacy of an arrest is likely to be a fact sensitive point”). In Richard, he noted that, in PNM v Times Newspapers Ltd [2014] EWCA Civ 1132 (01 August 2014) [37] Sharp LJ acknowledged “a growing recognition that as a matter of public policy, the identity of those arrested or suspected of a crime should not be released to the public save in exceptional and clearly defined circumstances”. But that acknowledgment formed part of a submission by the appellant that she did not accept, as it did not properly accommodate the open justice principle (ibid, [38]), a conclusion that was upheld on appeal (see Khuja [2017] UKSC 49). In ERY v Associated Newspapers Ltd [2016] EWHC 2760 (QB) (04 November 2016), it was conceded that the fact that the claimant had been interviewed under caution attracted a reasonable expectation of privacy, and Nicol J held that this enabled him to conclude that the claimant also had a reasonable expectation of privacy in the more general information that he was being investigated by the police (ibid, [65]). In ZXC v Bloomberg LP [2017] EWHC 328 (QB) (23 February 2017) [29] Garnham J observed that the defendant’s concession in ERY meant that Nicol J’s conclusion provides only weak support for the proposition that the claimant before him had a reasonable expectation of privacy in in the contents of the formal document sent by a law enforcement agency in the context of a criminal investigation into a company. Garnham J also rejected the opposite argument that, in the absence of the sort of concession made by the defendant in ERY, there cannot be a reasonable expectation of privacy on the part of a suspect that he is the subject of a criminal investigation. And he concluded that “it is impossible to lay down any such blanket rule in an enquiry as fact-sensitive as this” (ibid, [30]). Hence, the authorities had not clearly established that a suspect has a prima facie reasonable expectation of privacy in relation to a police investigation; indeed, they had probably declined to lay down such a rule; though they probably did not probably did not preclude Mann J establishing it in Richard.

Whether he should have done so turns on his argument of principle. That amounted to quotations from the Leveson Report (2012; vol 2 (pdf); [2.39] 791; see also ibid [3.3] 984), the Judicial Response to the Law Commission Consultation Paper No 209 on Contempt of Court (2013; p5), the College of Policing’s Guidance on Relationships with the Media (pdf) (2013; [3.5.2]), and Sir Richard Henriques’ Independent Review of Metropolitan Police Service’s handling of non-recent sexual offence investigations (2016; [1.39]-[1.40], [1.94]), all of which said that the police should not, save in exceptional and clearly identified circumstances, release the names or identifying details of those who are arrested or suspected of a crime. But even in an era of rights-based policing, where good practice on the part of the police must be informed by human rights considerations, this is a long way short of saying that this must be so because a suspect has a prima facie reasonable expectation of privacy in relation to a police investigation. On the other hand, such a rule, even where it is not invariable, has the capacity to trench as much upon publicity that is a useful element of an investigation as it does upon prurient exposure.

The leading case on the impact of the principle of open justice upon reasonable expectations of privacy is Khuja (formerly PNM) v Times Newspapers [2017] UKSC 49 (19 July 2017). Here, the claimant had been arrested with several other men in connection with child sex offences. The claimant was released on bail; but nine of the others were charged and tried; and seven of them were eventually convicted. Before and during the trial, various orders were made prohibiting the disclosure of information that might identify the claimant until a decision had been made whether or not to charge him with an offence. Two months after the trial ended, and sixteen months after he was first arrested, the claimant was released from bail without charge. The trial judge indicated that he was therefore prepared to lift the reporting restrictions. However, the claimant sought an interlocutory injunction to prevent the media from identifying him and publishing material about him derived from the trial. However, his claim failed at every stage, essentially because he could, in the circumstances, have no reasonable expectation of privacy in respect of material of great public interest disclosed in open court.

In In re Guardian News and Media Ltd [2010] 2 AC 697, [2010] UKSC 1 (27 January 2010) [66] Lord Rodger commented that the “identities of persons charged with offences are published, even though their trial may be many months off. In allowing this, the law proceeds on the basis that most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law”. Consequently, at first instance in Khuja, Tugendhat J commented that “members of the public generally will understand the difference between suspicion and guilt, and will know that a person is to be presumed innocent unless and until proved guilty” and he had “no doubt that there is the highest public interest in the allegations of child abuse that have been, and remain, the subject of police investigations” ([2013] EWHC 3177 (QB) (22 October 2013) [77]-[78]); and this was upheld by the Court of Appeal ([2014] EWCA Civ 1132 (01 August 2014) [38] (Sharpe LJ; Lord Dyson MR and Vos LJ concurring)). In the Supreme Court, Lord Sumption for the majority (Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed concurring) approved Lord Rodger’s comments in the Guardian case ([2017] UKSC 49 [8]). But he also warned that it “would be foolish for any court to ignore the extreme sensitivity of public opinion in current circumstances to allegations of the sexual abuse of children and the concerns about the safety of children generally to which those allegations give rise” (ibid). And he confessed that he “might have been less sanguine” than Tugendhat J had been about the reaction of the public to the way in which the claimant featured in the trial (ibid, [34]). However, these caveats should not obscure the fact that he held that the claimant did not have a reasonable expectation of privacy in the circumstances.

It is curious that Mann J in Richard ([2018] EWHC 1837 (Ch) [248]-[250]) should have focussed on Lord Sumption’s caveats and the joint dissenting judgment of Lord Kerr and Lord Wilson rather than upon the outcome in that case and in the earlier Guardian case. It is hard to see how a prima facie reasonable expectation of privacy in relation to a police investigation can stand with Guardian and Khuja. Instead, the careful judgments at all three levels in Khuja demonstrate that it is – and ought to be – a fact-sensitive enquiry in every case. More general, prima facie, expectations of privacy in relation to police investigations ought to be matters for legislation (see, eg, Home Office report on Pre-Charge Bail – Summary of Consultation Responses and Proposals for Legislation (pdf) (2015; p15)).

3. Conclusion
In holding that a suspect has a prima facie reasonable expectation of privacy in relation to a police investigation, Mann J certainly broke new legal ground. He may, however, have paid insufficient attention to the decisions of the Supreme Court in the Guardian case and Khuja. This is not to say that Sir Cliff did not have, or should not have been held to have had, a reasonable expectation of privacy in the circumstances. Rather, it is to say that any such conclusion should have been arrived at, not on the basis that such a prima facie expectation automatically arose, but after an appropriate fact-sensitive enquiry. [Update] The BBC considered whether to take an appeal, and sought leave. That application was rejected by Mann J[end update]. There is certainly scope for an appeal on this issue, to confirm or reject Mann J’s innovation, and – either way – thereby bring bring clarity to the law.