This blog post was first published by Law360 on March 10, 2022.
On 16 February 2022, in its judgment in Bloomberg LP v ZXC,1 the UK Supreme Court unanimously held that in general, and as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
The decision has been widely reported (in the British press)2 as failing to strike the right balance between the press’s right to freedom of expression and the individual’s right to respect for private and family life, and as a serious threat to the future of investigative journalism. This article situates the Supreme Court’s judgment in its proper context and considers whether it would be more accurate to regard the judgment as a principled restatement of established UK precedent and law enforcement practice.
Background
ZXC and his employer were the subject of a criminal investigation by a UK Law Enforcement Body (UKLEB). During the investigation, the UKLEB sent a confidential Letter of Request (the Letter) to the authorities of a foreign state requesting information relating to ZXC as part of a mutual legal assistance request. The Letter expressly requested that no person be notified of the existence or contents of the Letter in order not to prejudice the ongoing investigation.
Having obtained a leaked copy of the Letter, Bloomberg approached the UKLEB in advance of publication of an article reporting the contents of the Letter and the matters in respect of which ZXC was being investigated, including the UKLEB’s suspicions, assessments and preliminary conclusions in respect of the evidence against ZXC. Notwithstanding the UKLEB notifying Bloomberg that it believed the publication of the Letter’s contents would pose a material risk of prejudice to its criminal investigation, Bloomberg published its article in 2016. The article did not otherwise detail any findings or conclusions that Bloomberg came to as a result of its own investigation.
After Bloomberg refused to remove the article from its website, ZXC applied unsuccessfully for an interim injunction and later brought a successful claim for misuse of private information. Notably, the judge at first instance found there to be no recognition in the documentary evidence “of the highly confidential nature” of the letter or “any record of whether there was a careful … (or indeed any) assessment of the potential consequences of breaching that confidentiality or any weighing-up of this against the perceived public interest in publication.” The first instance decision was upheld by the Court of Appeal.
Supreme Court reasoning
The following points relevant to this article arise from the Supreme Court’s judgment:
- The determination as to whether there is a reasonable expectation of privacy remains a fact specific enquiry. The Supreme Court’s finding that, as “a legitimate starting point”, a person under investigation, prior to being charged, has a reasonable expectation of privacy in respect of information relating to that investigation is not a legal or irrebuttable presumption. It is simply a starting point for a balancing exercise that must consider all the factual circumstances of the case.
- It is widely accepted as a matter of public policy that publication of information that a person is under criminal investigation will cause damage to their reputation, irrespective of the presumption of innocence.
- In 2012, the Leveson Inquiry report recommended that “save in exceptional and clearly defined circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.” Leveson’s recommendation has since been adopted by state investigatory bodies and it is now their general practice not to identify those under investigation prior to charge.
- A series of first instance decisions have uniformly accepted the private nature of such information. Notably, the case of Richard v BBC3 held that the presumption of innocence is neither perfectly understood nor given effect to and that the general public is incapable of adopting a completely open and broad-minded view of the fact of an individual being the subject of an investigation.
- This is consistent with the UK Government’s view. In March 2021, the Parliamentary Under-Secretary of State for Justice noted that “The Government believe that, in principle and in general, there should be a right to anonymity pre-charge in respect of all offences.”
- The ZXC judgment deals only with pre-charge investigations, i.e., at a point when a state investigator has a reasonable suspicion of wrongdoing. It was common ground between the parties that once someone is charged (i.e., when a prosecutor is persuaded that there is sufficient evidence to provide a realistic prospect of conviction and considers that a prosecution is required in the public interest), principles of open justice are engaged and there can be no reasonable expectation of privacy.
- The judgment does not deal with the publication of information derived from Bloomberg’s own investigations – none of which was published in the article in question. It is confined to the impact of the publication of information derived from an investigation of a person by an organ of the state.
Conclusion: restatement and alignment
Consistent with ZXC and general UK state investigatory practice not to identify those under investigation prior to charge, in the context of Deferred Prosecution Agreements (DPAs), if there are extant or possible criminal proceedings against individuals, the UK Serious Fraud Office (SFO) will put measures in place to avoid the risk of the DPA causing prejudice to the relevant individuals. This will be either by imposing reporting restrictions on the publication of the statement of facts until the associated criminal proceedings are concluded or by anonymising the name of the entity entering into the DPA and the individuals referred to in the statement of facts. The SFO Handbook requires the SFO to give consideration to “the necessity for and impact of the identities of third parties being published” in the DPA. Similarly, the standard practice of the UK Financial Conduct Authority (FCA) when publishing information regarding the issuance of Warning Notices – the point at which, in regulatory proceedings, the FCA brings enforcement action against an individual or firm that could result in a regulatory sanction – is to anonymise individuals (due to the potential for harm being caused exceeding the benefits of early transparency) but to identify firms (where early transparency will usually be considered to trump the potential for harm).
Placed in its proper context, the Supreme Court’s judgment in ZXC can be seen as aligning the approach of the UK press with the settled approach of the UK Courts, Government and state investigatory bodies to pre-charge investigations. It does not introduce a new or novel curtailment on the rights of investigative journalists in the context of pre-charge investigations. It does though restate the longstanding legal requirement for a proper balancing exercise between the right to freedom of expression and the right to privacy to be undertaken, now with a legitimate starting point that recognises that “The fact of an investigation, as a general rule, will of itself carry some stigma, no matter how often one says it should not.”
2 https://www.thetimes.co.uk/article/privacy-for-suspects-is-a-supreme-court-decision-too-far-2jqcffwb0; https://www.theguardian.com/media/2022/feb/16/bloomberg-loses-uk-supreme-court-case-on-privacy; https://www.bloomberg.com/opinion/articles/2022-02-16/bloomberg-v-zxc-protects-powerful-people-from-accountability?sref=lDku10r2
3 Sir Cliff Richard OBE v The British Broadcasting Corporation and The Chief Constable of South Yorkshire Police [2018] EWHC 1837 (Ch)
