Individuals under investigation by law enforcement bodies have a reasonable expectation of privacy up to the point they are charged, the Court of Appeal has confirmed. Dismissing an appeal by a news agency barred from revealing the identity of a US businessman identified in documents concerning a bribery probe, the court ruled that the fact that an individual is the subject of a criminal investigation is genuinely of a different character from allegations about the conduct being investigated.
The appeal followed a High Court ruling last year in which Mr Justice Nicklin granted an injunction against news service Bloomberg protecting the businessman’s identity. The story at issue contained details of a letter of request sent by a ‘UK legal enforcement body’ to a foreign government seeking mutual legal assistance under the UN Convention against Corruption. The highly confidential letter identified ZXC as under investigation: his identity, that of the enforcement body and the country, as well as that of the author of the article, remain subject to reporting restrictions.
The ruling is the latest to confirm Mr Justice Mann’s 2018 finding in the Cliff Richard BBC case. It also cites the Court of Appeal’s 2006 judgment in landmark privacy case McKennitt v Ash.
Giving lead judgment in ZXC v Bloomberg, Lord Justice Simon addressed first whether the claimant had a right of privacy under article 8 of the European Convention on Human Rights and secondly whether this was outweighted by Bloomberg’s article 10 rights.
For Bloomberg, Antony White QC argued that the information about the conduct of a senior employee of a public company in relation to its business dealings fell outside the category of private or family life. However Simon LJ found that the article 8 right was engaged; there was no objection to Bloomberg reporting on the investigation, only to the individual being named.
He found that the High Court had been right to conclude that ‘in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge’. Bloomberg had failed to show that the public interest in revealing information about the investigation outweighed the reasonable expectation. It had not, for example, set out to highlight any deficiencies in the investigation.
Simon LJ added that 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.’
Antony White QC and Clara Hamer, instructed by Reynolds Porter Chamberlain, appeared for Bloomberg; Tim Owen QC and Sara Mansoori, instructed by Byrne and Partners, for ZXC.