By Dr John Olsson, Barrister and Law Lecturer, Paralegal College
In Sir Cliff Richard OBE v the BBC and SYP, [i] Mann J addresses the question of whether a suspect in a criminal investigation has a right to privacy, either under Article 8 of the European Convention on Human Rights (ECHR) as against a public body, in this case South Yorkshire Police (SYP) or under the tort which is developing out of Article 8 jurisprudence as against non‑public authorities, in this case the BBC.
The question as to whether there is a right to privacy, more formally, ‘a reasonable expectation of privacy’, of a suspect in a criminal investigation (Murray v Express Newspapers plc), [ii] has not previously been judicially determined. Hence, the court’s ruling on this important subject represents, at least until any appeal is decided, a landmark decision in human rights jurisprudence.
Before discussing how Mann J came to his decision (after listening to evidence and submissions over a period of 13 days during April and May of this year) on whether a suspect in a criminal investigation does have a right to privacy, it may be worthwhile to outline the facts of the case. What most readers will recall with relative ease (and in a way this is the whole point of the central legal question in the trial) is the dramatic helicopter footage of Sir Cliff’s Berkshire home with repeated broadcasts throughout the day of police cars entering and leaving the premises, officers carrying bags of evidence, and helicopter shots into Sir Cliff’s apartment of other officers wearing blue gloves as they carried out their search.
The search had come about because Operation Yewtree (the large scale police investigation into allegations of sexual abuse by prominent public figures following the Jimmy Savile scandal) became aware of an allegation against Sir Cliff Richard OBE of a sexual assault of a boy under the age of 16 at a rally at Sheffield in the 1980s. Because this concerned a single allegation against a single individual, Yewtree proposed to hand the investigation over to the relevant police area, South Yorkshire. South Yorkshire Police (SYP) began considering the matter in 2014.
At more or less the same time a BBC reporter received information, apparently from a police source, about the allegation against Sir Cliff. The reporter approached SYP and ultimately this led to a meeting between the reporter and a police superintendent accompanied by a SYP media officer.
The upshot of this meeting was that the BBC reporter agreed to hold off from reporting the allegation and the investigation if, in turn, he, the reporter, could receive exclusive advance warning of any intended search of Sir Cliff’s home.
The BBC claimed at trial that SYP agreed to this arrangement because they were seeking publicity, given that this was a very high profile case. SYP rejected this interpretation, stating that they felt at the time that if they did not cooperate the BBC reporter would publish the story anyway. They did not want this to happen because any advance publicity of this nature would in all likelihood destroy their investigation.
As this was the main issue of fact in the case, the reader may wish to note that Mann J rejected the BBC’s version of events, following appearances by 19 witnesses: ten for Sir Cliff, six for the BBC and three for SYP. As against Sir Cliff’s witnesses and SYP’s witnesses, the judge made no adverse remarks – he considered all of them to be credible. The same cannot be said of four of the BBC’s six witnesses, whom the judge considered to be variously either evasive or defensive, or in one case to ‘twist matters in a way that could be described as dishonest’. It did not assist the BBC’s cause that at trial they alleged that one of SYP’s witnesses had fabricated evidence in order to buttress its own case. Alleging fraud at a civil trial is a very serious matter, as those familiar with the Bar Standards Board Code of Conduct will know, but when such a claim fails because the judge finds the impugned witness entirely truthful and respectable, then the party which laid the accusation of fraud, can expect that a judge will not be impressed. The BBC’s conduct in submitting the broadcast of the search of Sir Cliff’s home for a Royal Television Society award in the ‘scoop of the year’ category also received condemnation by the judge and, incidentally, attracted aggravated damages.
As important as these matters are, however, the main point of the trial was to discover whether the BBC had infringed Sir Cliff’s right to privacy.
When considering whether there is a reasonable expectation of privacy in the face of an allegation of media intrusion, the court is required to balance Article 8 rights (respect for private and family life) of the ECHR against Article 10 rights (freedom of expression and opinion) (McKennitt v Ash). [iii]
It is of course universally accepted that media in a democratic society should be free, insofar as is not in conflict with the rights of others, to publish matters which they consider to be in the public interest.
Mann J began by considering whether there was a reasonable expectation of privacy in the present matter, and went on to discuss how this should be balanced against the Article 10 rights of the publisher.
As noted earlier, Mann J commented that no prior case had decided whether there was a right to privacy for a suspect in a criminal investigation, although several cases have conceded that it is either arguable (Hannon v News Group Newspapers Ltd), [iv] or that in the absence of clearly defined circumstances it should be the norm (PNM v Times Newspapers Ltd), [v] or that it was appropriate in certain, qualified, circumstances (ERY v Associated Newspapers Ltd  EMLR). [vi]
ZXC v Bloomberg LP is authority for the proposition that there is no blanket rule as to an entitlement to privacy, but that courts considered it to be a fact‑sensitive question, carried out, as the term of art ‘reasonable expectation’ indicates, objectively. [vii]
In other words, the question of whether it is reasonable for a person to expect that his or her privacy will be respected in a particular set of circumstances, may only be decided after an analysis of all the facts of the case.
So, although the question of Article 8 rights had engaged courts previously, including the European Court of Human Rights (ECtHR) in the case of Axel Springer AG v Germany, [viii] no final determination had been made as to whether, in a criminal investigation, the suspect would have a reasonable expectation as to privacy. As will be evident, Mann J was keen to discover whether there might be a useful starting point which would give guidance to those having to make decisions about privacy concerns in the future.
The judge therefore turned to a variety of other authorities. He began with the Leveson inquiry, which advised that police “must weigh very carefully the public interest considerations of taking the media on police operations against Article 8 and Article 6 rights of the individuals who are the subject of such an operation”. [ix] In the Leveson inquiry evidence was given by Christopher Jefferies, who had faced trial by media, Mann J citing this as an example of a lack of privacy afforded to a suspect in a criminal investigation who faced public vilification and loss of reputation on a mere suspicion which later turned out to be completely false.
Other authorities cited by the judge for the proposition that caution must be applied before revealing the identity of suspects in criminal investigations included the Judicial Response to the Law Commission Consultation Paper on Contempt of Court, [x] the College of Policing’s Guidance on Relationships with the Media, [xi] and, principally, the Independent review of the Metropolitan Police Service's handling of non-recent sexual offence investigations alleged against persons of public prominence, by retired High Court judge, Sir Richard Henriques. [xii]
In his report Sir Richard had found that “prominent people…are more vulnerable to false complaints than others”, including a vulnerability to “compensation seekers, attention seekers, and those with mental health problems”. Sir Richard also describes the “emotional turmoil and distress” suffered by those accused, in a number of instances wholly falsely, with the consequent “profoundly damaging effect” upon their lives. Mann J noted that there is a stigma attached to being a suspect in a criminal matter, particularly so in relation to allegations of sexual offences. He considered that, despite the centrality of the presumption of innocence doctrine in our legal system, members of the public appear unable to distinguish between suspicion and guilt, as Sumption JSC found in Khuja v Times Newspapers Ltd. [xiii]
In Rotherham Metropolitan Borough Council v M, [xiv] Cobb J had reached the same conclusion, when he quoted from The Times on 19 October 2016 to the effect that: “False rape and abuse accusations can inflict terrible damage on the reputations, prospects and health of those accused. For all the presumption of innocence, mud sticks”.
For these reasons, Mann J came to the conclusion that persons accused of criminal offences should prima facie have a reasonable expectation of privacy. However, he regarded this as a starting point only, stating that there might be cases when the reasonable expectation doctrine would not be supported, but, nevertheless, that legitimate expectation should always be the starting point.
The next matter that fell to the judge’s consideration was the question of the BBC’s rights as a publisher: did Article 10 mean that their rights superseded those of Sir Cliff?
The BBC conceded that Sir Cliff had a reasonable expectation of privacy as against SYP, but argued that the fact that there was a warrant, issued by a public body, a magistrate’s court, for a search carried out by another public body, the police, justified overriding Sir Cliff’s rights in the matter.
However, Mann J considered that simply because the evidence had reached a certain level, sufficient to satisfy a magistrate to issue a warrant, could not automatically mean that privacy rights should be sacrificed. He conceded that inevitably a search by police would attract the attention of neighbours, but that this – without more – could also not imply the loss of the claimant’s right to a reasonable expectation of privacy.
The judge then went on to deal with another defence argument, namely that as a public figure Sir Cliff had to some extent waived his privacy rights. While agreeing that any public figure does lose a degree of privacy by courting publicity, the judge nevertheless considered that simply being in the eye of the public did not mean that a person should be deprived of his or her rights, citing Rocknroll v News Group Newspapers Ltd in support of this point. [xv]
A second theory advanced by counsel for the BBC was that once news of an investigation reached the ears of a publisher or broadcaster the subject’s rights to privacy were somehow changed, or reduced in some way. The judge counters this argument with the view that if information starts out as private it does not lose its private character simply because a media organisation obtains that information. The claimant’s rights to a reasonable expectation of privacy do not change just because the media has been alerted to it: to the contrary, the suspected person “has a reasonable expectation of privacy full stop”. The expectation might be lost if there were cogent operational reasons for its disclosure, but that would be an entirely different matter.
Thus, according to the judge, it does not matter if the authority which comes into possession of information is a public authority, such as SYP, or if it is a private media organisation, such as the BBC. In the first case, Article 8 rights are engaged and in the second, rights may be asserted based on the (developing) tort which has thus far been fashioned out of the Human Rights Act. [xvi]
The judge then considered the process of balancing Article 8 and Article 10 rights against each other. The BBC argued that Sir Cliff would not have a reasonable expectation of privacy in relation to the complainant himself, and that this therefore weakened Sir Cliff’s privacy rights as against others, including the BBC. The BBC also suggested that it had a ‘duty’ to publish matters of public interest.
However, the judge considered that the nature of the allegation against Sir Cliff reinforced his reasonable expectation because of the damage that could be caused if information as to the investigation were revealed. He considered that even if Sir Cliff had no expectation of privacy vis-à-vis the complainant, this would not negate his reasonable expectation of privacy in relation to others.
Regarding the BBC claim that it had a duty to publish, the judge regarded this characterisation of the function of the press as unhelpful, stating that Article 10 is clear as to the right to freedom of expression.
The judge then turned to the question of balancing Article 8 with Article 10 rights. This area of jurisprudence, unlike the question of entitlement to privacy in a criminal investigation, had evolved to a reasonably mature state. In the Axel Springer case (at paragraph 89, reference to the case given above) the ECtHR had proposed six non‑exclusive criteria to assist judges considering this question:
- whether the publication of the information contributed to a debate of public interest;
- how well known the person is and the subject of the report;
- the person’s prior conduct;
- the method of obtaining the information and its veracity;
- the content, form and consequences of publication, and
- the severity of the sanction imposed on the publisher (or broadcaster).
A seventh factor is whether the publisher or broadcaster has its own code of ethics in relation to privacy, and whether it adhered to that code. As the judge noted, the BBC has its own Editorial Guidelines, which incorporate its approach to ethical questions such as those relating to privacy.
Regarding the first criterion given above, namely whether the broadcast contributed to a debate of public interest, the judge conceded that sexual abuse of children is an important topic, but that identification of a suspect cannot be said to fall into the same category. So, while gossip mongers might find it of interest that Sir Cliff had come under suspicion by police, it did “not contribute materially to the genuine public interest”, and “nor was it a material addition to the stock of public knowledge for these purposes” (paragraph 282).
With reference to Sir Cliff’s public status and prior conduct (criteria (ii) and (iii) above), the judge accepts that some loss of privacy is inevitable for public figures. However, this does not mean that the effect of privacy rights (emphasis added) should be diminished. In this section, the judge draws a distinction between proven misconduct and suspicion of misconduct: Sir Cliff’s status as a person of Christian faith could not have a bearing on whether mere allegations should enter the public domain. An attack on his reasonable expectation of privacy could not be justified on such a basis. Importantly, the judge concludes that public figures are not ‘fair game’ for any intrusion of privacy, especially in relation to mere allegations, as opposed to facts which have sustained the onslaught of forensic analysis in a successful criminal prosecution.
The fourth criterion mentioned above relates to the method by which the information is obtained by the broadcaster, and its veracity. The judge finds that the information which was disclosed to the BBC reporter was both confidential to the Yewtree inquiry, and private to Sir Cliff, and that the person who disclosed it knew that it should not be disclosed. In passing, the judge notes that on its own the confidentiality of information does not mean that it should not be disclosed, given that the press often publishes material which others might not want in the public domain, for example political exposés. This aside, not only was the information obtained under tawdry circumstances, but the BBC reporter further demonstrated bad faith by using his information as leverage to put SYP in a position where they felt they had to give him exclusive information in advance regarding the intended search of Sir Cliff’s property. The judge does not altogether condemn the right of a journalist to use subterfuge, but finds that in this case information which was obviously private and sensitive, and thus should not have been disclosed, was later bolstered by a form of threat. In these circumstances the judge could not condone the method by which the information was obtained.
A further point regarding publication concerns the matter of a person who is the subject of a broadcast having a right to reply. The judge found that, on balance, the BBC did not give Sir Cliff or his representatives sufficient time to reply, and that when the on‑scene reporter claimed that ‘despite efforts’ there was no reply from Sir Cliff or his representatives, this was unfair. Crucially, the judge considers as a matter of principle that publishers and broadcasters should give subjects of such reports the opportunity to challenge publication, perhaps in the form of an application for an injunction.
Regarding the content and form of the broadcast, the judge finds that the BBC acted with ‘breathless sensationalism’. He considered the use of the helicopter, from which a camera was directed into the property where police officers wearing blue gloves could be seen, could not be justified, though a BBC witness had said it provided confirmation of what was happening inside the property, a justification which the judge regarded as spurious. The judge thought that the helicopter and the filming of police cars entering the gated estate added a false drama to the occasion, and as no more than entertainment, merely providing fodder for the prurient, curious and opinionated, a point on which he comments earlier. All in all, the judge finds that the BBC went in for an invasion of Sir Cliff’s privacy rights “in a big way” (at paragraph 301).
The judge concludes that the consequences of disclosure for Sir Cliff were magnified by the sensationalist manner of the broadcast. He notes that the BBC’s own editorial guidelines prescribe that the greater the intrusion into a person’s privacy in a broadcast, the greater is the justification required, and he concludes that the BBC failed to adhere to those guidelines. [xvii]
The judge then reflects on the question of whether a sanction against the BBC would have a chilling effect on press freedom. Counsel for the BBC contended that the case against the BBC raised questions of constitutional importance and would undermine press freedoms. Given the significance of any judgment, the BBC claimed, a matter of this importance required legislative intervention. The judge pointed out that parliament had already made its views known in the form of the Human Rights Act, and that no further legislation was necessary. The Act set out the parameters of the reasonable expectation doctrine with clarity, and subsequent court judgments and dicta had refined its application in practice. The principles behind human rights were those laid out by legislation, not ones created by courts.
Finally, the judge concludes that the BBC did violate Sir Cliff’s privacy rights, and that its rights of freedom of expression do not outweigh those of Sir Cliff.
Substantial damages were awarded.