In a judgment by Lord Hamblen and Lord Stephens, with which the other Judges agreed (Lord Reed, Lord Lloyd-Jones and Lord Sales), Bloomberg’s appeal was dismissed.
The focus of the Supreme Court’s judgment was on Issue 1. As to this, the Court confirmed (at -) that the question of whether a person enjoys a reasonable expectation of privacy in respect of any particular information is an objective one, having regard to the expectation of a reasonable person of ordinary sensibilities placed in the same position as the claimant and faced with the same publicity, and in light of all the circumstances, including the so-called “Murray factors” (after Murray v Express Newspapers Ltd  Ch 481).
The Court held that in a case concerning the disclosure, at the pre-charge stage, of information relating to a criminal investigation into an individual, the “legitimate starting point” (as opposed to any legal presumption) is that the individual will have a reasonable expectation of privacy: . That is essentially because, regardless of the status of the individual or the nature of the potentially criminal conduct under investigation, “the person’s reputation will ordinarily be adversely affected causing prejudice to personal enjoyment of the right to respect for private life such as the right to establish and develop relationships with other human beings”: .
In reaching its conclusion on this point, the Court rejected 4 key submissions advanced by Bloomberg. First, the Court rejected Bloomberg’s submission that the “legitimate starting point” overlooks the public’s ability to observe the presumption of innocence, so as not to assume guilt. Second, the Court rejected Bloomberg’s submission that, to assume that some readers will think “no smoke without fire” when reading a report of an investigation, is contrary to the established approach in defamation law, which looks only at the understanding of the hypothetical reasonable reader. The Court held that the suggested analogy with defamation claims was inapt. Third, and perhaps most importantly, the Court rejected Bloomberg’s submission that whether a reasonable expectation of privacy arises in respect of reports of an investigation into suspected criminal conduct depends on whether the conduct alleged falls within the sphere of the claimant’s private life and that it is insufficient for that purpose that publication simply harms the claimant’s reputation or otherwise impacts upon the claimant’s enjoyment of his private and family life. Fourth, the Court rejected Bloomberg’s submission that the courts below had failed to apply, as required, an “all the circumstances” test, and that it had only given weight to the effect of publication of the claimant, to the exclusion of any real consideration of the other circumstances.
In reaching its decision on Issue 1, the Court had regard to: various policy concerns, articulated at a high level in, for example, the Leveson Report and the College of Policing guidance, about the potential negative effect on an innocent person’s reputation of reporting that he or she is the subject of a criminal investigation; court decisions reflecting these concerns; and the case law of the ECtHR. Critical to the Court’s finding on Issue 1 was its assessment that “information may be characterised as private because it is reputationally damaging provided it attains a certain level of seriousness and consequentially impacts on the personal enjoyment of the right to respect for private life”: .
Issue 2 was dealt with shortly by the Court at -. In summary, the Court held that the confidentiality of the Letter of Request was a relevant factor to be considered when assessing whether ZXC had a reasonable expectation of privacy and that the courts below had not gone further by, e.g., considering that factor to be determinative. The Court did not specifically address, but implicitly rejected, Bloomberg’s case that ZXC’s privacy claim must fail in circumstances where he had not pursued his claim for breach of confidence and where (according to Bloomberg) no claim for breach of confidence had been open to be asserted by him.
Issue 3 did not arise for determination, given the Court’s conclusions that there had been no errors of approach as asserted in Issues 1 and 2.
The Court noted, at , that it was common ground that no reasonable expectation of privacy could arise once a suspect is charged with a criminal offence, and endorsed the view that this was so.
The Court also noted that the quantum of damages was not disputed in the appeal, but commented, somewhat cryptically, that “The applicable principles as to damages formulated in this case and in Sicri v Associated Newspapers Ltd may merit consideration in a case in which the issues arise for determination. We have reservations about the extent to which quantification of damages for the tort of misuse of private information should be affected by the approach adopted in cases of defamation…”: .