A High Court judgement has found that a suspect in a police investigation has a reasonable expectation of privacy which is likely to trump the press’s right to freedom of expression.
The decision was made by Mr Justice Nicol in ERY v Associated Newspapers Ltd last month.
Earlier this year, police investigating suspected financial crime raided the premises of two companies. These raids were reported in the local press, and subsequently came to the attention of the Mail on Sunday.
The title contacted a prominent and apparently wealthy businessman (ERY) concerned in the operation of one of the companies, seeking comment.
An “on the record response” was provided by ERY’s public relations representative, following which an article about the matter was published on Mail Online.
A press release was then given on behalf of ERY.
At that stage ERY was not a suspect, or was not known to be a suspect, in the investigation. However, he was later asked to attend an interview under caution by the police, which he did on a voluntary basis.
When it became clear that the Mail on Sunday was aware of developments and planned to publish an article about the investigation, ERY sought an injunction against the publisher, Associated Newspapers Ltd, restraining them from publishing the fact of his investigation and interview by the police, on the basis that this information was private and confidential.
An interim injunction was granted by Mr Justice Dove sitting as the out-of-hours judge on Saturday 15 October, on a holding basis, owing in part to the shortage of time.
The claimant’s application for its continuation then came before Mr Justice Nicol.
The claimant was granted permission to bring the proceedings using the pseudonym ‘ERY’.
The defendant’s evidence before Mr Justice Nicol was that the Mail on Sunday wished to publish an article referring to the investigation of the claimant’s company, but that it did not intend to publish the fact that the claimant had been interviewed under caution, and if that position changed, they would give the claimant 24 hours’ notice before going to press.
The claimant argued that an injunction was still necessary.
Chief among the claimant’s concerns was that any article about the investigation of his company was likely to be written in such a way as to convey the impression that he was being personally investigated, even if this was not expressly stated.
The claimant invited the court to consider past articles by the defendant’s titles about the claimant and the company.
As a matter of law, the claimant argued that the fact that police were investigating him was a matter in which he had a reasonable expectation of privacy under Article 8 of the European Convention on Human Rights (‘ECHR’).
In these circumstances, he believed that this right clearly outweighed the defendant’s right to freedom of expression under Article 10 of the convention.
This being the case, the claimant was likely to succeed at trial, such that the granting of the injunction would not contravene section 12(3) of the Human Rights Act 1998 (which stipulates that there should be no relief to restrain publication before a trial unless a claimant is likely to satisfy the court that publication should ultimately not be allowed).
The claimant also argued that the fact of the police investigation of him was confidential, and that if the defendant’s source was a police employee or employee of his company, the disclosure to the defendant would have been in breach of confidence.
But it was conceded that this offered no greater protection, in these circumstances, than the claim for misuse of private information.
Perhaps surprisingly, the defendant conceded that the claimant’s Article 8 rights were engaged and that, as matters stood then, Article 8 precluded publication of the fact of the claimant’s interview under caution.
The defendant argued that in light of its open position – namely that it would not publish that fact, and that if its intention changed it would give the Claimant 24 hours’ notice in which to seek the assistance of the Court – an injunction could not be justified.
As to the wider position, the defendant argued that there was a public interest in knowing that a police investigation into that company was ongoing.
In addition, public statements had been made about the investigation, which were incomplete, or misleading, and the Mail on Sunday should be free to correct those.
Finally, the defendant wished to carry out its own investigations into the suspected wrongdoing, and the injunction sought would frustrate those as they prohibited it from “using” the information.
The defendant conceded that a reference to the company being under investigation might well be taken as, or to include, a reference to the claimant personally, given his prominent role in it.
But the defendant was not in a position to exclude this possibility, because it would be untrue to say that the claimant was not being investigated. Injunctions had to be drafted with precision and the defendant should not be placed at risk of contempt by publishing the intended article about the company.
Mr Justice Nicol noted that the defendant was not intending to publish the fact of the claimant’s police interview, and therefore he did not need to decide whether the claimant had a reasonable expectation of privacy as to that fact, but he noted that the defendant conceded that he did.
That being the case, the judge could see no reason why that expectation of privacy would not extend to the more general fact that the claimant was being investigated, and he found that the claimant’s Article 8 rights were likely to prevail over the defendant’s Article 10 rights in that respect.
The injunction sought by the claimant did not expressly prevent the Mail on Sunday from publishing an article about the company.
The judge recognised that such a story might have to be written with care to avoid conveying the meaning that the claimant was also personally under investigation, but he did not believe that result to be inevitable.
He did not accept that granting the injunction would effectively prohibit the defendant from publishing that story.
The word “using” could be removed from the injunction, so as to allow the defendant to continue its own investigations, provided it did not publish, communicate, or disclose the information concerned.
Subject to this amendment, the Judge ordered that the injunction should continue.
But in light of the defendant’s position and the fact that the police investigation was ongoing, he gave the defendant liberty to apply for the order to be discharged or varied on 24 hours’ notice (though noting that such an application would have no prospect of success unless there had been a significant change in circumstances).
(This is an edited version of an article which first appeared on the Criminal/Regulatory law blog on the website of London law firm Brett Wilson on November 29).
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