Protecting Your Privacy In Early Stage Investigations

• Published date: 21 September 2020
• Subject Matter: Criminal Law, Privacy, Privacy Protection, Crime
• Law Firm: Withers LLP
• Author: Ms Laura Mattar and Jo Sanders

Innocent until proven guilty is one of the most familiar legal concepts in the world. But how much can you protect yourself if you find yourself involved in an investigation or case? New case law from the Court of Appeal, 'ZXC' ¹, has recently confirmed that suspects under investigation, pre-charge, have a reasonable expectation of privacy. Essentially, this means that if you are under suspicion but have not yet been charged, you have a basis to oppose being named by the press.

We have already seen news media taking extra notice of this ruling and many will have noted that the Conservative MP arrested on suspicion of (but not charged with) rape in recent weeks has remained anonymous.

Methodology behind the case law

The new ruling will cover individuals who are under criminal investigation by HMRC or the National Crime Agency for example, as well as it would also cover those individuals being investigated by the police, like Sir Cliff Richard who famously sued the BBC for misuse of private information, when they named him as the subject of an investigation by the South Yorkshire Police as part of Operation Yew tree. He was never arrested or charged with any offence and the Court held was unlawfully caused harm by being associated publicly with allegations that were without foundation.

The Court of Appeal built on the judgment in the Richard case by affirming that an individual who is subject to investigation by 'an organ of the state' has a reasonable expectation of privacy prior to the point of charge.

There were a number of reasons given why a person under arrest, but not charged, would have a reasonable expectation of privacy in relation to that fact. Publication of an innocent person's arrest can cause irremediable damage to their reputation, given that fact alone could cause substantial publicity. This was considered in the case of Christopher Jeffries ² whose arrest for the murder of Bristol University student Joanna Yeates led to a protracted campaign of vilification against him in the Press. He was also completely innocent and another individual was later identified as the murderer.

This reasoning was based upon the fact that people often assume there is 'no smoke without fire' in spite of the fundamental legal principle that individuals are innocent until proven guilty. ZXC had not been arrested, let alone charged. It was therefore a legitimate starting point that an individual who was the subject of an investigation had a...