In a judgment handed down on 15 May 2020, the Court of Appeal has upheld the decision of Mr Justice Nicklin that an article about a fraud, bribery and corruption investigation into the Claimant at a time when he had not been charged with any offence amounted to a misuse of his private information. The decision is likely to have significant ramifications for the media reporting of criminal investigations before the suspect has been charged.
Some of the published information derived from a Letter of Request for mutual legal assistance sent to a foreign state as part of an investigation by a UK law-enforcement body (“UKLEB”). Bloomberg had sought to challenge, amongst other things, the Judge’s findings that generally prior to charge a person under criminal investigation has a reasonable expectation of privacy in information relating to the investigation, and that the high public interest in publishing information about the alleged corruption which was the subject-matter of the criminal investigation had only an indirect bearing when evaluating the Article 10 freedom of expression rights of the publisher in this case.
The Court of Appeal (Lord Justice Underhill, Lord Justice Bean and Lord Justice Simon) dismissed Bloomberg’s appeal. The Court found that, while not a universal rule, “those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion.” 
The Court added that “the reasonable expectation of privacy is not in general dependant on the type of crime being investigated or the public characteristics of the suspect (for example, engagement in politics or business) … I see no good reason why suspicion relating to a crime concerning business dealings should be an exception to a salutary general approach which is founded on the preliminary stage of a state enforcement agency enquiry into what may or may not lead to a charge. To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion; although I would accept that there may be some cases where the reasonable expectation of privacy may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration (rioting, for example, or electoral fraud)” .
The Court found that the trial Judge had “rightly identified that the public interest in publication about the problems of corruption in the Foreign State was not directly relevant to the specific question he had to address, namely: whether there was a public interest in publishing information about the contents and provisional results of the UKLEB investigation” . In a separate but concurring judgment, Lord Justice Underhill noted that “in the circumstances of a particular case the undoubted legitimacy of publishing allegations of misconduct may mean either that a person under criminal investigation for involvement in the misconduct has no reasonable expectation of privacy in that fact or that that expectation is outweighed by the article 10 rights of the publisher”, but the Judge had been entitled to find that this was not such a case .
Bloomberg was represented in the Court of Appeal by 5RB’s Clara Hamer (led by Antony White QC), instructed by Reynolds Porter Chamberlain LLP.
The judgment of the Court of Appeal is available here.
A 5RB case report can be found here.