Privacy in the context of criminal investigations: Bloomberg LP v ZXC [2022] UKSC 5

Articles | Mon 21st Feb, 2022

On 16 February 2022 the Supreme Court handed down their unanimous judgment in Bloomberg LP v ZXC [2022] UKSC 5.  The Court held that, in general, a person who is under criminal investigation has, before being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

The claimant, ZXC, is an American citizen who has indefinite leave to remain in the UK.  He worked for a publicly-listed company and became the chief executive of a regional division of that company.  ZXC brought a claim for misuse of private information (“MPI”) after Bloomberg published an article relating to the activities of a company in ZXC’s division that had been subject to a criminal investigation by a UK law enforcement body.

One of the issues that the Supreme Court had to resolve was whether the Court of Appeal had been wrong to hold that there is a general rule that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

In answering that question, the Court considered the judgment of Sir Anthony Clarke MR in Murray v Express Newspapers plc [2008] EWCA Civ 446 which endorsed a two-stage test for whether there had been a misuse of private information: at stage one the question is whether the claimant had a reasonable expectation of privacy in the relevant information; if so, at stage two the question is whether that expectation is outweighed by the countervailing interest of the publisher’s right to freedom of expression.

At [§36] of Murray it was noted that “the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case”.  Those circumstances are likely to include what have become known as the “Murray factors”, which are:

(1) the attributes of the claimant;

(2) the nature of the activity in which the claimant was engaged;

(3) the place at which it was happening;

(4) the nature and purpose of the intrusion;

(5) the absence of consent and whether it was known or could be inferred;

(6) the effect on the claimant; and

(7) the circumstances in which and the purposes for which the information came into the hands of the publisher.

At [§72] the Court held:

“We consider that the general rule or the legitimate starting point adumbrated in the courts below in relation to this category of information is similar to what can be termed a general rule in relation to certain other categories of information. It has already been recognised that a consideration of all the circumstances of the case, including but not limited to the so-called Murray factors, will, generally, in relation to certain categories of information lead to the conclusion that the claimant objectively has a reasonable expectation of privacy in information within that category. The most striking example of such a category is information concerning the state of an individual’s health which is widely considered to give rise to a reasonable expectation of privacy: see McKennitt v Ash [2005] EWHC 3003 (QB) at para 142 per Eady J, and in the Court of Appeal at para 23 per Buxton LJ. There can of course be exceptions even in relation to information concerning the state of an individual’s health, but generally, details as to an individual’s health are so obviously intimate and personal that a consideration of all the circumstances will result in that information being appropriately characterised as private under the stage one test unless there are strong countervailing circumstances”.

Accordingly, the first question to be answered was whether the courts should proceed from a similar starting point of there being a reasonable expectation of privacy in respect of information that a person is under criminal investigation.

The Court carefully analysed the existing case law and Bloomberg’s arguments, yet rejected those submissions.  At [§144] the Court held:

“A determination as to whether there is a reasonable expectation of privacy in the relevant information is a fact-specific enquiry which requires the evaluation of all circumstances in the individual case. Generally, in setting out various factors applicable to that evaluation, including but not limited to the Murray factors, it is important to recognise that not all of them will be relevant to every conceivable situation and that the examination of the factors must be open textured without being given any pre-ordained weight. However, in respect of certain categories of information, such as the information in this case, a consideration of all the circumstances and the weight which must be attached to a particular circumstance will generally result in a determination that there is a reasonable expectation of privacy in relation to information within that category. In respect of those categories of information it is appropriate to state that there is a legitimate starting point that there is an expectation of privacy in relation to that information. We prefer the terminology of “a legitimate starting point” to emphasise the fact specific nature of the enquiry and to avoid any suggestion of a legal presumption, as noted above in para 67. We consider that the courts below were correct in articulating such a legitimate starting point to the information in this case. This means that once the claimant has set out and established the circumstances, the court should commence its analysis by applying the starting point”.

The notion that the starting point for the stage one exercise is that there is an expectation of privacy has caused a degree of consternation in some quarters of the media who fear that the Court’s judgment in ZXC will deter the publication of stories concerning police investigations.  However, the decision needs to be read fully and in context.

In the passage quoted above, Lord Hamblen and Lord Stephens (who delivered the Court’s unanimous judgment) made the point that the phrase “legitimate starting point” was used so as not to give the suggestion that they were laying down a legal presumption.  Whilst the starting point may be therefore that information about a criminal investigation is likely to be presumed to be private, courts are still required to evaluate all the circumstances of the particular case.

Moreover, the Court was setting out a presumed starting point in relation to the stage one enquiry.  The Court at [§76] made the following point:

“[T]his ground of appeal is confined to the stage one test. Even if information is characterised as private it would still be capable of being published if outweighed at stage two by the countervailing interest of the publisher’s right to freedom of expression in accordance with article 10 of the ECHR ...”.

It is clear therefore that while an individual may well have an expectation of privacy in relation to a criminal investigation, that expectation can be overridden in appropriate circumstances in light of a publisher’s Article 10 rights.

Further still, it was common ground that “whenever a person is charged with a criminal offence the open justice principle generally means that the information is of an essentially public nature so that there can be no reasonable expectation of privacy in relation to it”.

Whether ZXC will have any real consequences for the ability of the press to run stories about criminal investigations remains to be seen.  However, on a more prosaic level, police forces will have to have the issue of privacy in mind during their day-to-day activities and in how they reveal intentionally or inadvertently, the fact of an investigation to third parties.