Privacy And Suspect Rights - UK Supreme Court Confirms An Individual's Right To Privacy When Under Criminal Investigation

• Published date: 21 March 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Criminal Law, Privacy, Privacy Protection, Trials & Appeals & Compensation, Human Rights, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Cadwalader, Wickersham & Taft LLP
• Author: Mr Kevin Roberts and Duncan Grieve

Summary

In a recent judgment (Bloomberg LP v ZXC [2022] UKSC 5), the UK Supreme Court confirmed that suspects subject to a criminal investigation are entitled, as a general rule, to a reasonable expectation of privacy regarding information relating to the investigation until they are charged. The ruling is consistent with established principles relating to suspect rights, similar decisions from lower courts and published police guidance.

Cases such as Bloomberg v ZXC are often highly fact-specific. The Supreme Court did not deal with situations where an individual's wrongdoing is publicised through a separate media investigation independent of police or regulatory processes. It also does not deal with circumstances where an individual is named as having participated in misconduct but is not charged in those proceedings.

Any publication of the fact that an individual is subject to a criminal investigation is inevitably damaging to the reputation of that individual and potentially to any organisation with whom they are associated. In light of this, it is fair for a suspect to expect that an organ of the state keeps "suspicions, assessments, and preliminary conclusions to the disfavour of [the suspect]" confidential. Once the authorities decide to bring charges against an individual, the principle of open justice prevails and the matter enters the public domain. The principle of open justice is motivated by the desire (among others) to ensure that courts and tribunals can be held accountable for the decisions that they make, and to maintain public confidence in the way that those decisions are made.

The delicate balance between maintaining the integrity of criminal processes, free press reporting of matters in the public interest and an individual's right to privacy is, and will continue to be, the subject of intense debate. A Bloomberg spokesperson stated that "We are disappointed by the court's decision, which we believe prevents journalists from doing one of the most essential aspects of their job: putting the conduct of companies and individuals under appropriate scrutiny and protecting the public from possible misconduct".

The UK government has announced plans to overhaul the Human Rights Act 1998 and reformulate these principles into a UK Bill of Rights. It is possible that this new legislation will recast the current status quo changing the balance between press and suspect interests as clarified in this case.

Background

In 2016, Bloomberg (the...