On Friday (4 November), the High Court handed down judgment in ERY v Associated Newspapers Limited, granting an interim injunction preventing publication in the Mail on Sunday of the fact that a businessman was the subject of a police investigation into alleged financial crime, in the course of which he had been interviewed under caution.
The issue of the privacy rights of individuals who are investigated by the police, perhaps as a result of a complaint which turns out to be groundless, and ultimately are never charged, has become increasingly contentious in recent years.
As a matter of practice, the police usually do not disclose the names of persons under investigation until they are charged, except in certain specified circumstances (e.g. when the safety of the public is at risk). However, this guidance is of uncertain legal force and sometimes ignored by both the police and the media, as was recently seen in the police raid on Sir Cliff Richard's home with a BBC helicopter in attendance.
The media always argues 'public interest', but given the serious effect that such disclosure can have on a suspect, including its potential impact on his or her family and professional life, the Court tends to take a more nuanced view.
In this case, the Court made clear that the claimant had a reasonable expectation of privacy (which is the relevant legal test) in the fact that he was under police investigation and had been interviewed under caution and therefore his Article 8 privacy rights were engaged. The Court did not accept the newspaper's argument that those were overridden by public interest considerations.
With both regulators and prosecutorial authorities such as the SFO becoming increasingly active, particularly in the financial services sector, this decision is useful confirmation of the Court's willingness to step in to protect privacy rights in such circumstances.