The settlement in Carey v Independent News & Media and the status of Bloomberg v ZXC in Ireland

Pat Carey (2011) via FlickrAfter a long and distinguished career as a popular public servant, first as a councillor, then then as a TD, and finally as a Minister, Pat Carey (pictured left) is now a public affairs consultant. On 11 and 12 November 2015, the Irish Independent reported that a Garda investigation was under way into allegations of child sexual abuse against an un-named former Minister. He claimed that he was identifiable as the person concerned, and he felt he had no choice but to issue a statement denying the allegations. He was never arrested; and, after the Garda investigation had concluded, the Director of Public Prosecutions in 2019 informed him that no charges would be brought against him. Meanwhile, he commenced proceedings against various defendants, including the Garda Commissioner and the Irish Independent, for damages for invasion of privacy. When the case settled in Mr Carey’s favour earlier this month, there was much sympathetic coverage:

In a statement read in open court, the Garda Commissioner acknowledged that during the course of an investigation into allegations relating to Mr Carey, information in relation to the matter had found its way into the public domain; he accepted that this should never have happened; and he apologised to Mr Carey for the “severe and wholly unjustified distress” he had suffered as a consequence. Mr Carey secured substantial damages, believed to be some €250,000, and his legal costs. The damages and most of the costs will be paid by the State, but a contribution of €75,000 to the costs will be made by Independent Newspapers.

This outcome was inevitable. For example, in Bloomberg LP v ZXC [2022] AC 1158, [2022] UKSC 5 (16 February 2022) the UK Supreme Court unanimously held that, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. Whether there is a reasonable expectation of privacy is always an objective question (Campbell v MGN Ltd [2004] 2 AC 457, [2004] UKHL 22 (6 May 2004); Slattery v Friends First Life Assurance Company Ltd [2013] IEHC 136 (15 March 2013) [109] (McGovern J) (the matter did not arise on appeal: [2015] IECA 149 (10 July 2015)); so the pre-charge reasonable expectation of privacy cannot be a legal rule or legal presumption, let alone amount to an irrebuttable presumption. Rather, it is a fact-specific enquiry, which will always depend upon the particular facts of an individual case. Furthermore, there can be no reasonable expectation of privacy once that person has been charged with a criminal offence; still less in respect of proceedings in open court (PNM v Times Newspapers Ltd [2019] AC 161, [2017] UKSC 49 (19 July 2017)). However, any such a reasonable expectation of privacy must be balanced against, and can be outweighed by, a publisher’s right to freedom of expression; and, here, the extent to which publication is in the public interest is of central importance (on the genesis of these two stages, see the judgment of Sir Anthony Clarke MR in Murray v Big Pictures (UK) Ltd [2009] Ch 481, [2008] EWCA Civ 446 (07 May 2008)).

Mr ZXC was the subject of a criminal investigation. The investigating body sent a confidential Letter of Request to a foreign state seeking information and documents relating to him. Bloomberg obtained a copy of the letter, and published an article about the investigation. Nicklin J in the High Court held that he had a reasonable expectation of privacy which was not outweighed by Bloomberg’s right to freedom of expression ([2019] EWHC 970 (QB) (17 April 2019)); and the Court of Appeal affirmed ([2021] QB 28, [2020] EWCA Civ 611 (15 May 2020)). The appeal to the Supreme Court concerned the question whether Mr ZXC had a reasonable expectation of privacy, and very little was said on the question of Bloomberg’s right to freedom of expression.

Approving a line of cases including Richard v British Broadcasting Corporation [2019] Ch 169, [2018] EWHC 1837 (Ch) (18 July 2018) (discussed in detail here (as to Sir Cliff Richard’s pre-charge reasonable expectation of privacy) and here (as to the lack of any public interest in the BBC’s broadcast of a police raid on his home)), the Supreme Court affirmed that, as a legitimate starting point, suspects under police investigation have, before charge, a reasonable expectation of privacy. In Sicri v Associated Newspapers Ltd [2021] 4 WLR 9, [2020] EWHC 3541 (QB) (21 December 2020), the plaintiff was arrested in connection with a terrorist bombing of a concert, and the defendant identified him on its website, but he was subsequently released without charge. Following Bloomberg in the Court of Appeal, Warby J held that the plaintiff had a reasonable expectation of privacy when being investigated and not yet charged, and that identifying him made no contribution to any public debate. This decision was approved by the Supreme Court in Bloomberg. On the other hand, in In re JR38 [2016] AC 1131, [2015] UKSC 42 (1 July 2015), the Supreme Court held that the publication by the police of CCTV footage of rioting, to identify those involved and to deter similar activity in the future, was justified. This decision, too, was approved by the Supreme Court in Bloomberg. Indeed, the legitimate starting point of a pre-charge reasonable expectation of privacy applies after arrest and before charge, where the rules on contempt can also apply (WFZ v British Broadcasting Corporation [2023] EWHC 1618 (KB) (29 June 2023); but cf DPP v Independent Newspapers Ireland Ltd [2003] IEHC 624 (7 March 2003)).

Here, Mr Carey was the subject of a criminal investigation, information about which had been leaked by the Gardaí, and it found its way into the Irish Independent. He was never arrested, no charges were ever brought, and there was no countervailing public interest in identifying him. It might therefore be argued that, as a legitimate starting point and by analogy with Bloomberg, Mr Carey had a pre-charge reasonable expectation of privacy which was not outweighed by the Irish Independent‘s right to freedom of expression.

The analysis in Bloomberg was conducted under the rubric of the tort of misuse of private information; and there has been no Irish case either expressly adopting that tort or coming to the same conclusion as the UK Supreme Court did in that case. Indeed, as Butler J commented in granting discovery at an earlier stage in Mr Carey’s own case, it “is difficult to draw exact parallels between the law of privacy in this jurisdiction and the law in the neighbouring jurisdiction especially in light of the constitutional aspects of the plaintiff’s claim in these proceedings …” and she noted that in particular the plaintiff had “not pleaded his case so as to invoke that specific tort” (Carey v Independent News & Media plc [2021] IEHC 229 (26 March 2021) [44]). Nevertheless, in Shawl Property Investments Ltd v XY [2021] IECA 53 (19 February 2021) [66] Whelan J (Faherty and Collins JJ concurring) referred to “the evolving misuse of private information or privacy-invasion tort”. Moreover, the Irish courts have acknowledged that the law protects reasonable expectations of privacy (Director of Public Prosecutions v Idah [2014] IECCA 3 (23 January 2014) [34]-[38] (MacMenamin J; Herbert and de Valera JJ concurring); CRH plc v Competition and Consumer Protection Commission [2017] IESC 34 (29 May 2017) [32] (Charleton J)), albeit that it does so by means of a (constitutional) tort of invasion of privacy (the leading case is Kennedy v Ireland [1987] IR 587 (doc | pdf) (Hamilton P); on the juridical nature of such a claim, see now McGee v Governor of Portlaoise Prison [2023] IESC 14 (25 May 2023) [79] (O’Donnell CJ)) rather than a common law claim for misuse of private information. And the privacy interests protected by that constitutional tort have been balanced against the public interest in freedom of expression at irish law in exactly the same way that they were balanced at all three levels in Bloomberg (here, the leading case is Cogley v RTÉ [2005] 4 IR 79, [2005] IEHC 180 (8 June 2005) (Clarke J); see also Herrity v Associated Newspapers [2009] 1 IR 316, [2008] IEHC 249 (18 July 2008) (Dunne J); O’Brien v Radió Telefis Éireann [2015] IEHC 397 (21 May 2015); Nolan v Sunday Newspapers Ltd (trading as Sunday World) [2019] IECA 141 (15 May 2017)).

These authorities suggest that the structure of the analysis in an Irish case would be similar to the two stages set out in Bloomberg. Other cases suggest that the outcome of that analysis would be similar too. For example, in Hanahoe v Hussey [1998] 3 IR 69, [1997] IEHC 173 (14 November 1997) and Gray v Minister for Justice [2007] 2 IR 654, [2007] IEHC 52 (17 January 2007) (extensively discussed here, here, and here), the plaintiffs recovered damages in respect of leaks by Gardaí of their private information. In Hanahoe (much as in Richard v BBC) the Gardaí leaked to the media that they would carry out a search at the offices of a prominent firm of solicitors. Kinlen J held (at [60]) that the leak amounted to a breach of a duty of care in negligence and to misfeasance of public office. He commented that it “was an outrageous interference with … [the solicitors’] privacy and their constitutional rights” (at [69]). And he awarded £100,000 in damages. In Gray, a Dublin family who had moved to a rural location were forced out when the Gardaí­ leaked to the local press that they had taken in their nephew who had just been released from prison after serving a sentence for rape. Quirke J held that the leak amounted to a breach of the family’s privacy rights which could not be excused by any public policy consideration, and he awarded damages to the various members of the family.

On the other hand, in CO’T v President of the Court of Criminal Appeal [2005] 3 IR 470, [2005] IEHC 263 (26 July 2005), Smyth J declined to award the applicant a declaration or damages in relation to the alleged leaking of details of his detention and of the investigation into charges against him, holding (delphically) that the case was not similar or comparable to Hanahoe. In Boyle v Governor of St Patrick’s Institution [2015] IEHC 532 (31 July 2015), the plaintiff was caught attempting to smuggle a mobile phone into a prison; this was leaked to a journalist; but Barr J distinguished Hanahoe and Gray, and held the leak did not amount to an invasion of privacy.

The cause of action in Hanahoe is obscure, though Kinlen J probably thought that it was based on breach of a duty of care. Certainly, in Gray v Minister for Justice, Dunne J described Hanahoe as turning on the negligence of the defendants, as did the Court of Appeal in Bailey v Commissioner of An Garda Siochana [2017] IECA 220 (26 July 2017) [40] (Birmingham and Hogan JJ, in a joint judgment; Finlay Geoghegan J concurring). In Hanahoe, Kinlen J also referred to the tort of misfeasance in public office; and, in CRH v CCPC, MacMenamin J acknowledged this (at [59]), but nevertheless treated it as a case in which privacy interests were thereby protected. Indeed, Hanahoe is now increasingly being regarded simply as an example of damages for invasion of privacy. For example, in Caldwell v Mahon [2006] IEHC 86 (15 February 2006), Hanna J described Hanahoe as a claim for damages against the defendants for interference with the plaintiff’s right to privacy (and see also Digital Rights Ireland v Minister for Communication [2010] 3 IR 251, [2010] IEHC 221 (05 May 2010) [53] (McKechnie J)). In Herrity, Dunne J listed Hanahoe and Gray as cases in which a “right to claim damages for breach of privacy … [has] been recognised …” (and the Court of Appeal in Bailey (at [40]) gave Gray the same characterisation). In Boyle (at [24]) Barr J similarly viewed Hanahoe as a case which provided a damages remedy for invasion of privacy. And, in CRH v CCPC at first instance, ([2016] IEHC 162 (05 April 2016)) [60]) Barrett J praised Kinlen J’s observations on privacy in Hanahoe as “considerably prescient”.

On this reading, then, Hanahoe might well be seen as an Irish harbinger of Bloomberg, providing suspects, as a legitimate starting point, with a reasonable expectation of privacy before charge. Pre-charge anonymity has widespread public support in the UK; and, in Ireland, suspects are not generally named by the Gardaí unless and until they have been charged with a criminal offence (see David Leonard “Privacy for Suspects Never Charged with Offences – UK Developments & the Irish Law Examined” (Law Library Viewpoints, 10 March 2022)). Moreover, section 62 of the Garda Síochána Act 2005 (also here) provides

(1) A person who is or was a member of the Garda Síochána … shall not disclose … any information obtained in the course of carrying out duties of that person’s office [or] employment … if the person knows the disclosure of that information is likely to have a harmful effect.

(2) For the purpose of this section, the disclosure of information referred to in subsection (1) does not have a harmful effect unless it— …
(h) results in the publication of personal information and constitutes an unwarranted and serious infringement of a person’s right to privacy, …

(5) A person who contravenes subsection (1) is guilty of an offence …

If Mr Carey had a pre-charge reasonable expectation of privacy, then the Garda who leaked the information about the investigation is likely to have committed a criminal offence in contravention of this section (to say nothing of section 145 of the Data Protection Act 2018 (also here)). In Bloomberg, the Supreme Court explained that the rationale for a pre-charge reasonable expectation of privacy is that publication of such information ordinarily causes damage to the person’s reputation together with harm to multiple aspects of the person’s physical and social identity such as the right to personal development, and the right to establish and develop relationships with other human beings and the outside world. The harm and damage can on occasions be irremediable and profound. This is well illustrated by the case of a man arrested in connection with a high-profile murder last year. He was later released without charge; but, in the meantime (much as in Sicri v Associated Newspapers) his name had come into the public domain; and he and his family suffered such dreadful abuse that the Gardaí took the unusual step of releasing a statement confirming that he had been eliminated from their enquiries. This is also illustrated by the facts of Mr Carey’s case. He said that he had been subjected to the gravest allegations, that his character had been vilified, and that his good name had been destroyed. He felt he had to step aside from his public functions until he could demonstrate the allegations were false. Whilst this had now occurred, he emphasised that this had come at an enormous price to him and to those close to him over the last seven-and-a-half extremely difficult years. After Bloomberg, there is now, in the UK, a uniform general practice by state investigatory bodies not to identify those under investigation prior to charge, because to be suspected of a crime is damaging whatever the nature of the crime, or the characteristics or status of the individual concerned. The Commissioner’s statement accepts that this is now also the position in Ireland, as it should be.