05 Aug 2022

Bloomberg LP v ZXC – a step towards greater fairness for uncharged suspects

On 16 May 2022, a Conservative MP was arrested by the Metropolitan Police on suspicion of a number of criminal offences, including rape and misconduct in public office. He has not been named by the police. This is not surprising, as it accords with the College of Policing Guidance on Relationships with the Media, which states that: “suspects should not be identified to the media (by disclosing names or other identifying information) prior to the point of charge, except where justified by clear circumstances, such as a threat to life, the prevention or detection of crime, or a matter of public interest and confidence.”

He has also not been identified in the House of Commons, despite the protections of Parliamentary privilege, following an edict from the Speaker Sir Lindsay Hoyle. Much like the police’s approach to maintaining the anonymity of suspects pre-charge, this is a recent phenomenon: it was only in 2016 that the House of Commons Standards Committee reversed the policy that an arrested MP should be identified as a matter of course.

What is much more unusual and noteworthy is that the media itself has not named the MP. The cause of this newfound reticence is undoubtedly the Supreme Court’s recent decision in Bloomberg LP v ZXC , handed down in February of this year. Indeed, several major newspapers have published explanatory pieces specifically citing ZXC as inhibiting his identification.

The key issue in ZXC was whether, in general, a person under criminal investigation who has not yet been charged has a reasonable expectation of privacy in relation to information relating to that investigation. The Court concluded that, “as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation”. From a privacy perspective, this puts information relating to being an uncharged suspect in a criminal investigation on a par with, for example, information relating to a person’s health.

ZXC does not change the well-established legal test for determining whether there has been a misuse of private information, which still involves two stages. Firstly, whether the claimant objectively has a reasonable expectation of privacy in the relevant information, which they are entitled to have protected under Article 8 of the European Convention on Human Rights. Secondly, a balancing exercise to establish whether that expectation is outweighed by the publisher’s Article 10 right to freedom of expression. However, ZXC has clarified this test inasmuch as editors and publishers must now approach the first stage from the starting point that a criminal suspect has a reasonable expectation of privacy, rather than starting from a position of neutrality.

Does this unduly fetter the ability of the press to hold others to account and expose matters of legitimate public concern? I would argue not. It is important to clarify what ZXC does not do. Firstly, it does not make it unlawful to publish the identity of a suspect, unlike, for example, the Contempt of Court Act 1981 (in respect of post-charge reporting) or the Sexual Offences (Amendment) Act 1992 (in respect of the identity of victims of alleged sexual offences). Secondly, it does not go so far as to establish a rebuttable legal presumption in favour of privacy. Indeed, the Court was clear that the “legitimate starting point does not invariably lead to a finding that there was objectively a reasonable expectation of privacy in the information”. In other words, there will be cases where a criminal suspect has no reasonable expectation of privacy even under the first stage of the test. The court gave an example: if a criminal suspect has held people hostage over a number of days of televised proceedings before being arrested then they are unlikely to have a reasonable expectation of privacy over the fact they are a criminal suspect. Thirdly, even where a person has a reasonable expectation of privacy, the second stage of the test endorsed by the court explicitly mandates a balancing exercise in which the press’s right to freedom of expression might outweigh that expectation. For example, the (now closed) criminal investigation into Prince Andrew is one where, given his status as a senior member of the Royal Family, and the fact that he voluntarily submitted to a televised interview about the allegations, publication of his name would likely be justified under the balancing exercise.

Therefore, returning to the unnamed Conservative MP, would identifying him necessarily be unlawful applying the principles expounded in ZXC? The police investigation has a significant public interest, given it concerns an elected public servant suspected of misconduct in public office. Indeed, it could be suggested that assurances that the MP will not come to Parliament do not go far enough: his party has not suspended him, and therefore his constituents are entitled to know if their representative is unable to advocate for their interests in Parliament, or if there are reasonable grounds to suspect that he may have misconducted himself in discharging this function historically. Those constituents will never know about the allegations unless he is charged with them.

Applying ZXC principles, it is at least arguable that a court would conclude that the balancing exercise points towards publication; that this is a matter of sufficient public interest such that, regardless of the starting point, the end point justifies publication. Nonetheless, it will be a brave editor who decides to publish the MP’s name. Whatever the legal niceties of the balancing exercise, the inevitable practical impact of ZXC is a new default position; that the names of suspects in criminal investigations will very rarely be published in future.

This de facto inhibition is controversial. However, as a general principle, preserving the anonymity rights of suspects pre-charge is a fundamental element of ensuring fairness to innocent people caught up in a police investigation in which they may never be charged, let alone convicted. The reputational damage caused by being “outed” as the suspect in a criminal investigation cannot be overstated. Protests about the ‘chilling’ effect of ZXC and the importance of a free media seldom refer to the impact on Sir Cliff Richard of having the West Yorkshire police raid on his house broadcast live by the BBC, or on Christopher Jefferies, whom the tabloid press identified in 2010 as a suspect in the murder of Joanna Yeates. Neither man was ever charged with any offence. Similarly, it is important not to conflate legitimate law enforcement reasons for identifying suspects pre-charge (for example, encouraging other complainants to come forward, or protecting the public from further offending), on which only the investigating agency is able to take an informed view, with the more nebulous public interest served by media publications.

The damage to individuals named before being charged has recently been scrutinised in a number of corporate criminal cases where the company has entered a deferred prosecution agreement or a guilty plea. In the former case, judicial practice has been consistently to anonymise Statements of Facts (detailed written admissions made by the company and agreed by the prosecutor) and then to defer their publication until the conclusion of any criminal trial of the individuals. In the latter case, the practice has been less uniform and therefore less satisfactory: individuals have sometimes found themselves without protection where a company has pleaded guilty, and individuals are named as unindicted co-conspirators on the indictment. As a public court document, the press are entitled to publish the names of those in the indictment, despite the fact that they may never be charged with any criminal offence. The only remedy available to individuals in this position is to seek a common law anonymity order from the court, supported by reporting restrictions under the Contempt of Court Act 1981. This remedy is however entirely at the judge’s discretion; the ZXC principles would be informative but not determinative. Corporate pleas of guilt to offences on an indictment naming unindicted co-conspirators therefore present a loophole to the ZXC starting point. In order to ensure fairness to uncharged suspects, it can only be right that courts consistently make anonymity orders in favour of unindicted third parties in these circumstances.

The judicial and prosecutorial attitude to the anonymity of suspects pre-charge has shifted a great deal during the last ten years. ZXC was as much a reflection of this shift as an attempt to break new ground. Whilst the British public’s appetite for salacious stories about the alleged wrongdoing of public figures will never abate, the direction of travel is now clearly away from feeding that appetite, and towards fairness to those not charged with any crime.

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