Mr Justice Mann has handed down his decision in the case brought by Sir Cliff against the BBC and South Yorkshire Police for infringement of his right to privacy.
In 2014, unknown to Sir Cliff, he became the subject of an investigation by the police in relation to an allegation of an historic sex offence. The investigation was at that time being conducted by South Yorkshire Police. Mr Daniel Johnson, a BBC reporter, had found out about the investigation from a confidential source and approached the police about it. That led to a meeting between Mr Johnson and the police at which he was told about an intended search of Sir Cliff’s home, a secure gated complex in Berkshire, and at which it was agreed that Mr Johnson would be given advance notice of the search when it had been arranged.
The search took place on 14 August 2014 and the BBC immediately gave prominent and extensive television coverage to it (including footage from an overhead helicopter), as the search was happening and afterwards. The story attracted world wide coverage. Sir Cliff wholly denied the allegations. He remained under investigation until June 2016, when it was announced that there would be no charges brought against him.
The questions for the judge to decide were:
- whether Sir Cliff had a legitimate expectation of privacy in relation to the fact of the investigation against him and the fact of the search of his home; and
- if he had such right, was the BBC nonetheless justified in publishing by virtue of its right of freedom of expression.
The judge held that the question of whether the existence of a police investigation is something in relation to which that person has a reasonable expectation of privacy is not something which has to date been clearly judicially determined. He took into account the report of Sir Brian Leveson in his enquiry into the culture, practices and ethics of the press that it should be made abundantly clear that save in exceptional and clearly indentified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public. The judge also referred to the fact that this guidance is reflected in the police’s own guidance on relationships with the media.
The judge held that as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation. If the general public was universally capable of adopting a completely open and broad-minded view of the presumption of innocence so that there was no risk of taint either during an investigation or afterwards (assuming no charge), then the matter would be different. However, the fact of an investigation as a general rule will of itself carry some stigma, and mud will invariably stick.
The judge held that an accused should at least prima facie have a reasonable expectation of privacy in respect of an investigation, although expressly did not find that there is always an invariable right to privacy.
In balancing this right to privacy with the press right to freedom of expression, the judge recognised that sexual abuse of children is matter of serious public concern, and abuse carried out by those in a public position and who had contact with children in that position is of particular concern. Police investigations into such people are a matter of legitimate public interest. The judge concluded however that it does not follow that because an investigation at a general level is a matter of public interest, the identity of the subject of the investigation attracts the same character. Knowledge of the identity of the subject of the investigation is not necessarily a material legitimate addition to the stock of public knowledge, and does not contribute materially to the genuine public interest as regards the existence of police investigations in this area. The judge stated that public figures are not “fair game” for any invasion of privacy.
Other important factors in the decision were that the BBC did not afford Sir Cliff a sufficient opportunity to challenge the publication before it happened, being more focused on preserving the exclusivity of its own scoop. The investigation and search were further subsequently “presented with a significant degree of breathless sensationalism”.
The judge ordered the BBC should pay Sir Cliff damages in the sum of £210,000 (a significant amount and over double that awarded to Max Mosley in relation to his privacy claim against the News of the World), including £20,000 in aggravated damages, following the BBC’s decision to nominate its story for an award at the World’s Television Society Awards as the “scoop of the year”.
Since the decision has been handed down, it has been reported that the BBC is looking to appeal it on the basis that the judgement could have far reaching effects for media freedom and the public’s right to know. It is being argued that in many situations publishing the name of someone under investigation has led to other witnesses and victims coming forward. Moreover the police should be kept under scrutiny in a free society, and this decision will make this much harder for the press to do.
Nonetheless, contrary to some reports in the media, the judge did not make it unlawful for anyone under investigation to be named. This is not necessarily ‘a dark day for press freedom’, as the decision is being described. It is accepted that it is often a difficult decision for a broadcaster whether to name a suspect before they have been charged. Where there is a genuine public interest in a person being named, the press rightly continues to be free to identify the person being investigated notwithstanding this judgment. Nonetheless, after careful consideration of the facts in this particular case, the judge vindicated Sir Cliff’s claim that the nature of the BBC’s reporting and the level of intrusion into his privacy was in this case plainly excessive.