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Landmark Court of Appeal judgment on privacy in criminal investigations

The Court of Appeal has confirmed that the recent judgment in Richard v BBC [2018] EWHC 1837 (Ch), that an individual has a reasonable expectation of privacy until charge,applies as the ‘legitimate starting point’ for privacy during a criminal investigation and that it is the fact of the investigation, not the nature or subject of such, that is private.  

The Court, in rejecting the defendant’s argument, therefore held in ZXC that an individual’s right to privacy is not affected by the type of crime being investigated, nor the public characteristics of the suspect, such as involvement in business or politics. 

ZXC v Bloomberg L.P [2020] EWCA Civ 611 

The defendant, press agency Bloomberg, appealed against a High Court injunction that prevented it from revealing the identity of the claimant ZXC, a US businessman, and the company he worked for, X. X was being investigated for bribery by an unnamed UK legal enforcement body (‘UKLEB’).

In 2016 the UKLEB sent a lengthy Letter of Request to its foreign counterpart, asking for assistance in its investigation. Although confidential by its very nature, the letter stressed the importance of keeping its existence and contents confidential. As well as detailing the evidence that had been so far obtained, the letter stated that a part of the investigation was whether ZXC was part of a conspiracy to defraud X.

Despite the confidentiality warnings, the letter of request was obtained by Bloomberg journalists and an article written which contained information drawn almost exclusively from the letter. This article was then published, despite the serious concerns expressed by the UKLEB of the effect that publication would have on their ongoing criminal investigation. 

The claimant sought an injunction to secure the removal of the article from online publication and damages, both of which were granted. The defendant appealed on the basis that the claimant, as a senior employee of a public company who was being investigated for criminal activity in relation to his business transactions, had no reasonable expectation of privacy.

Judgment

Simon LJ, giving the judgment, stated:

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 suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.

I would add that the reasonable expectation of privacy is not in general dependant on the type of crime being investigated or the public characteristics of the suspect (for example, engagement in politics or business). The crime need not be sexual […] and I see no good reason why suspicion relating to a crime concerning business dealings should be an exception to a salutary general approach which is founded on the preliminary stage of a state enforcement agency enquiry into what may or may not lead to a charge. To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion; although I would 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 

Comment 

ZXC will be a welcome judgment for those who are subject to future investigations, particularly those involving the business transactions of high-profile companies which may last for years before a charging decision is reached. However, the starting point is just that.   The Court, in ZXC, were keen to emphasise, as in Richards, that it is a general starting point to which exceptions may (and probably will) apply. Whether they do will depend on the individual facts of the case: the Court gave the example of where a suspect’s name is released by the police for legitimate policing reasons. In such case, the suspect may struggle to establish that they had a reasonable expectation of privacy in relation to that information.  

Further, once a suspect’s right to privacy is established it is still subject to a balancing exercise between the privacy rights of the suspect under Article 8 of the ECHR and the freedom of information rights of the media under Article 10. In ZXC, the Court agreed that the issue of corruption in a foreign state and the suspect company’s possible involvement in such was of high public interest; however, the suspect’s rights outweighed those of the journalists because the article focused on the contents of the Letter of Request. Had the article instead concerned, for example, faults concerning the investigation, the journalists’ rights may have outweighed the suspect’s.

As regards the privacy rights of a company which is under investigation, the position is yet to be settled through the courts. The European Court of Human Rights ‘Guide on Article 8 of the ECHR’ states that ‘the Court has, to date, expressly left open the question of whether the private life aspect of Article 8 protects the reputation of a company’. The Serious Fraud Office, who routinely conduct investigations into the business transactions of companies, published guidance which provides that the Office may publicise their investigations if the company under investigation makes the information public, if there are operational reasons for announcing the investigation (such as a call for witnesses), or there is some other substantial reason why the announcement of the investigation would be in the public interest.

Finally, it must not be forgotten that the suspect’s reasonable expectation to privacy in respect of the investigation ceases to exist as soon as charges have been brought.

By Natasha Lake who is currently undergoing pupillage at 5pb.  

Posted by 5PB on 22 May 2020 at 13:55