N.A. Moreham: Police investigations: privacy, confidence and public duties

The Court of Appeal has recently affirmed the proposition that a person can be liable under the misuse of private information tort for revealing that someone is the subject of a police investigation before they have been charged.  This raises important questions about the relationship between the citizen and the state when the former has the latter under investigation. But so far that relationship has not been central to the courts’ decision-making on this issue. Rather, the basis for liability has been a broad-brush conclusion that a person will generally have a reasonable expectation of privacy in the fact that they “have simply come under suspicion” of the police or other state authority.  This blog post will suggest there is a better way to resolve these tricky cases.

Applying the misuse of private information tort: ZXC and Richard

Two high profile privacy cases exemplify the way in which the misuse of private information tort has been applied to these types of cases. The first is the well-known case of Richard v BBC  in which Mann J awarded Sir Cliff Richard £210,000 plus unquantified special damages for a BBC broadcast showing police officers searching his London flat as part of an investigation into an historic sexual abuse allegation. The footage was taken from outside the apartment but included sensationalist footage taken from a helicopter. The BBC had been tipped off about the search by officers of the South Yorkshire Police who had been led to believe that the BBC had details of the investigation and were prepared to publish them.  Concerned that publication would undermine their investigations, the police offered information about the search in an attempt to stay the BBC’s hand. The claimant’s claim against the South Yorkshire Police settled for £400,000 plus costs before the proceedings against the BBC were heard.

In Sir Cliff’s successful claim against the BBC, Mann J held that as a general rule suspects should have a reasonable expectation of privacy in respect of police investigations into their conduct and that Sir Cliff had such an expectation. His main reason for reaching this conclusion was the stigma attached to the information about the search of Sir Cliff’s home. He also concluded that the public interest in the disclosure did not outweigh the claimant’s interest in privacy, stressing once again the potential impact of the disclosure on the defendant’s reputation.

In ZXC v Bloomberg, the defendant had published an article about the investigations of a United Kingdom law enforcement body (the UKLEB) into a company chief executive’s alleged involvement in corruption in a foreign state.  The article contained information taken from a highly confidential letter of request sent by the UKLEB to that state (although it is not clear from the judgments how Bloomberg obtained it).  The Court of Appeal upheld Nicklin J’s decision that ZXC had a reasonable expectation of privacy in respect of both the fact that the UKLEB had requested the information about him and the details of the matters it was investigating.  The Court of Appeal rejected, inter alia, the claim that the judge had been wrong in law to conclude that in general a person has a reasonable expectation of privacy in a police investigation (up to the point of charge), again emphasising the stigma associated with such information and “the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty” ([82]).  As in Richard, that expectation was held not to be outweighed by Bloomberg’s countervailing right to publish information which is in the public interest.

Problems with the privacy-based approach

So the principal basis for imposing privacy liability in Richard and ZXC was that there is such a strong stigma attached to the fact that one is a police suspect that (up to the point of charge) you are usually entitled to expect to keep it to yourself.  Because it is reasonable to expect that such information would not be shared beyond the police, this argument broadly goes, one has a reasonable expectation of privacy in respect of it.  It is important to recognise, however, that one can agree with the first part of that sentence – that it is reasonable to expect that information about an investigation would not go beyond the police before charge – but not the second i.e. that it follows that, for the purposes of the tort, a person must have a reasonable expectation of privacy in respect of it.

There are a number of problems with the second proposition.  First, allowing claimants to rely on the tort of privacy when their principal objective is protecting their reputation brings the action into potential conflict with defamation, especially that action’s strong protection for public interest expression (see e.g. Flood v Times Newspapers Ltd).  Second – and related – information about police investigations doesn’t sit comfortably alongside the kinds of information or activity that courts usually regard as private (e.g. material relating to health, sex life, the details of intimate relationships, etc.).  Third, the idea that police investigations are usually private is difficult to square with the well-established principle that courts shouldn’t help people to suppress evidence of their own serious wrongdoing (see eg Browne v Associated Newspapers Ltd). This in turn leads to concerns about the chilling effect of cases like ZXC and Richard. The conclusion that a person has a reasonable expectation of privacy in respect of the fact that he or she is being investigated by the police risks deterring the victims of crime or other harm from telling others about the wrongdoing.  It could also chill the investigation of suspected wrongdoing by the media or other actors, especially where powerful people are involved.

A better cause of action: the Marcel principle in breach of confidence

In light of all this, it would be preferable for liability to be imposed in the police investigation cases on some basis other than a broad-brush interpretation of a reasonable expectation of privacy in tort. This is where the Marcel principle in breach of confidence steps in. In Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 it was established that:

The statutory powers given to the police are plainly coupled with a public law duty… In the context of the seizure and retention of documents… the public law duty is combined with a private law duty of confidentiality towards the owner of the documents.

This principle was reaffirmed in 2016 by the UKSC in R v (on the application of Ingenious Media Holdings) v Commissioners for Her Majesty’s Revenue and Customs. Lord Toulson (speaking for the Court) put it in the following terms:

where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom it was received or to whom it relates not to use it for other purposes.

 at [17]

Applying that principle, Lord Toulson held that a HMRC officer had acted unlawfully when he disclosed the claimant’s tax affairs to a journalist during an interview on tax avoidance. He said that HMRC’s entitlement to receive and hold confidential information about a taxpayer’s financial affairs was granted for the purpose of assessing taxation obligations and did not justify discussion of particular cases in the media.

These principles seems relevant to police investigation cases like Richard and ZXCIngenious Media and the line of authority on which it is based establish that no person who obtains information pursuant to a legal power or in furtherance of a public duty is free to disclose it to others unless that disclosure is consistent with the original purpose for which the information was obtained.  Earlier cases, including Marcel itself, have made it clear that this principle applies to information held by the police.  So a police officer who gives the media information about an investigation into a particular suspect’s conduct would seem to be acting in breach of confidence. The media could also be liable.  It is well-established that a party who takes information when it knew or ought to have known that it was confidential will itself be fixed with those same obligations of confidence.

Why this is a better approach

The Ingenious Media principle seems like a better basis for imposing liability in cases like ZXC and Richard than misuse of private information.  This is because it homes in more clearly on the central concern in the police investigation cases – namely, the fact that the police are giving the media information about their investigations into named individuals without a good operational reason for doing so.  The BBC didn’t find out about the search of the claimant’s apartment from just anyone; the police told them about it themselves.  ZXC is similar.  Although the judge made no specific finding on how the letter of request ended up in the hands of the media, it is clear that the investigatory authority should never have allowed it to happen. The wrong at the heart of both cases therefore seems to be that investigatory authorities allowed personal information which they should have been carefully protecting to end up in the public domain. 

By putting the relationship between the citizen and the state at the heart of liability, the Marcel principle also makes it clear that journalists, victims of mistreatment and other non-legally-empowered actors remain free to disclose information about the wrongdoing (subject to liability in defamation or other actions).  The chilling effect of liability would therefore be more limited. In an area with potentially significant implications for freedom of expression, this seems like a good idea.

N A Moreham is a Professor of Law at Victoria University of Wellington and editor (along with Sir Mark Warby) of Tugendhat & Christie: The Law of Privacy and the Media (3rd ed) OUP, 2016.

For fuller development of these arguments see N A Moreham, Privacy, reputation and allegations of wrongdoing: why police investigations should not be regarded as private (2019) 11 JML 142; and “Police investigations, privacy and the Marcel principle in breach of confidence” (2020) 12 JML 1.

 (Suggested citation: N.A. Moreham, ‘Police investigations: privacy, confidence and public duties, U.K. Const. L. Blog (18th Feb. 2021) (available at https://ukconstitutionallaw.org/))