Does a suspect in a criminal investigation have a reasonable expectation of privacy? Or does the fact that they are under investigation mean they forfeit all privacy rights?

These issues were recently considered by the High Court of England and Wales in a case brought by pop singer, Sir Cliff Richard against the BBC.

The Court clarified that, as a general principle, an individual who is the subject of a criminal investigation has a legitimate expectation of privacy in relation to the fact of the investigation. However, this expectation may be displaced in certain circumstances.

The judgment of the English High Court is not binding on the Irish courts, but may be persuasive should a similar issue arise here.

THE CLIFF RICHARD CASE

In 2014, Sir Cliff Richard became the subject of a criminal investigation. A BBC reporter found out about the investigation from a confidential source and arranged for the police to give him advance notice of an intended search of Sir Cliff's home. The BBC broadcast live footage of the search and reported on it extensively, with reporters on the ground and a helicopter overhead. A reporting team was also dispatched to cover Sir Cliff's properties in Portugal (where hewas at the time) and Barbados.

Following the search, the police issued a statement, but did not name the suspect. The BBC, however, identified the suspect as Sir Cliff.

No charges were ultimately brought against Sir Cliff.

Sir Cliff sued the BBC and the police for breach of his privacy rights. The English High Court found that the BBC had infringed his privacy rights, awarding him 210,000 in general damages, in addition to special damages. His case against the police was settled.

POLICE INVESTIGATION - A REASONABLE EXPECTATION OF PRIVACY?

The Court found that the question of whether there is a reasonable expectation of privacy in a police investigation is fact-sensitive and is not capable of a universal answer. However, the starting point must be that a suspect has a reasonable expectation of privacy. This expectation may be displaced in particular circumstances, e.g. where there is an immediate risk to the public.

SEARCH OF PROPERTY - A REASONABLE EXPECTATION OF PRIVACY?

The Court found that Sir Cliff also had a legitimate expectation of privacy in relation to the search. While the circumstances of the execution of a search warrant may, as a matter of practice, compromise the privacy of an investigation, this does not mean that privacy rights should be automatically and totally lost. For example, the fact that neighbours might know about a search does not lead to an inevitable loss of privacy.

INFORMATION PASSED TO MEDIA - A REASONABLE EXPECTATION OF PRIVACY?

The Court stated that an individual's reasonable expectation of privacy does not simply end because the information gets into the hands of the media. Sir Cliff's rights in respect of the information in the hands of the police were not based on a reasonable expectation of privacy as long as the information did not fall into the hands of the media; he had a reasonable expectation of privacy full stop.

MEDIA'S RIGHT TO FREEDOM OF EXPRESSION

The Court found that the BBC's right to freedom of expression did not outweigh Sir Cliff's privacy rights.

The Court accepted that there is a very significant public interest in the fact of police investigations into historic sex abuse. However, it stated that there was no public interest in identifying Sir Cliff as the suspect in this case.

The Court also had regard to the sensationalist manner in which the BBC reported the story, which it stated materially increased the invasion of privacy rights.

Ireland - Privacy rights prevail

  • Herrity v Associated Newspapers: A newspaper was found to have breached an individual's right to privacy by publishing details of recorded telephone calls detailing personal and private matters. No right to freedom of expression could be said to arise as the material was private. The fact that material was accurate did not of itself give rise to a right to publish the material.
  • X v Sunday Newspapers Ltd: A newspaper was prevented from publishing an article alleging that a baby had been conceived while the mother's partner was serving a prison sentence. The infant's right to privacy outweighed the expression rights of the newspaper.

Ireland - Public interest prevails

  • Aherne v RTE: RTE was not prevented from broadcasting a programme which made serious allegations of abuse in a nursing home, and which included footage obtained by an employee equipped with a concealed camera. The Court considered that to prevent the broadcast of the programme would stifle public debate on an important issue.
  • Murray v Newsgroup Newspapers Limited: A convicted sex offender who had been released from prison lost his claim for breach of privacy against a newspaper that published articles revealing his identity and whereabouts. The newspaper's source was allegedly someone from within An Garda Sochna (the Irish police). There was a sufficient public interest in publishing the information, in particular as the sex offender had not shown the court that he was unlikely to reoffend.
  • Hickey v Sunday Newspapers Ltd: An individual lost her claim for breach of privacy against a newspaper that photographed her, her partner (who had been married to a well-known Irish entertainer) and their child leaving the Register of Births, Deaths and Marriages. There is no legitimate expectation of privacy while carrying out public functions. The child was not identifiable in the photographs and the individual had herself actively sought publicity.