Supreme Court Finds In Favour Of Right To Privacy For Those Subject To Criminal Investigation

• Published date: 15 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Herbert Smith Freehills
• Author: Mr Neil Blake and Christopher Cox

The Supreme Court has confirmed that an individual who is the subject of a criminal investigation will, in general, have a reasonable expectation of privacy in respect of the investigation until he or she is charged: Bloomberg LP v ZXC [2022] UKSC 5.

This decision follows a number of first instance decisions to similar effect, and accords with guidance published by the College of Policing and the Independent Office for Police Conduct.

The Supreme Court emphasised that the information in this case related to an investigation by an organ of the state, and included information as to that body's "suspicions, assessments, and preliminary conclusions to the disfavour of the claimant". The appeal did not concern the publication of information about an individual's wrongdoing resulting from the media's own investigations, which would be a distinct situation. It is also important to note that, even in respect of information derived from a police or regulatory investigation, each case will turn on its facts.

While this judgment will be welcomed by those subject to police or regulatory investigations, it has (predictably) been the subject of fierce criticism by the media. It remains to be seen whether the government's planned overhaul of human rights legislation, in the form of a Bill of Rights, will seek to address the conclusions of the Supreme Court in this case.

Background

The claimant was an American citizen ("ZXC") who worked for a company with operations in a number of different jurisdictions. He and his employer became the subject of a criminal investigation from a UK Law Enforcement Agency (the "UK Agency"). As part of that investigation, the UK Agency sent a Letter of Request to a foreign government, which sought documents and information relating to ZXC (the "Letter"). The Letter explicitly stated that its contents should remain confidential in order not to prejudice the investigation.

Bloomberg became aware of the Letter. It published an article drawn almost exclusively from information within the Letter, detailing the information sought by the UK Agency in relation to ZXC and the matters for which he was being investigated. It refused to remove this article when asked to do so by ZXC.

The claimant was successful in his claim for misuse of private information at first instance, and that decision was upheld by the Court of Appeal. Bloomberg appealed to the Supreme Court.

Decision

The tort of misuse of private information requires the court to apply a...