If you have been accused of a crime, whether this information will become public is likely to depend on whether you have been charged or not.

Pre-charge: police investigation

The recent case of Bloomberg LP v ZXC [2022] UKSC 5 makes it clear that generally there is an expectation that during the police investigation, someone accused of a crime will have a right to privacy, and information about their alleged involvement in the crime will not be published. There is a two-stage test to be considered, namely:-

  1. Whether the accused has a reasonable expectation of privacy in the relevant information; and

  3. If so, whether that expectation is outweighed by the countervailing interest of the publisher’s right to freedom of expression.

Stage 1: Is there a reasonable expectation of privacy?

Whether there is a reasonable expectation of privacy is an objective question. The expectation is that of a reasonable person of ordinary sensibilities placed in the same position as the accused and faced with the same publicity. This takes into consideration all the circumstances of the case, which are likely to include (but not limited to) the following:-

  1. The attributes of the accused;

  3. The nature of the activity in which the accused was engaged;
  4. The place at which it was happening;
  5. The nature and purpose of the intrusion;
  6. The absence of consent and whether it was known or could be inferred;
  7. The effect on the accused; and
  8. The circumstances in which and the purposes for which the information came into the hands of the publisher.

The effect on the accused must attain a sufficient level of seriousness for Article 8 European Convention on Human Rights (‘ECHR’) (the right to respect for private and family life) to be engaged.

The determination as to whether there is a reasonable expectation of privacy in the relevant information is a fact-specific enquiry. It is a starting point, and whether someone is entitled to expect privacy is dependent on the facts of the individual case.

The Supreme Court confirmed that there is a reasonable expectation of privacy in respect of information that a person is under criminal investigation and in respect of information relating to that investigation, prior to that person being charged.

Stage 2: Is that expectation outweighed by the countervailing interest of the publisher’s right to freedom of expression?

This involves a balancing of the accused’s Article 8 ECHR right to privacy and the publisher’s Article 10 ECHR right to freedom of expression. No right takes automatic precedence over the other, and the following considerations are important in carrying out the balancing exercise:-

  1. An intense focus on the comparative importance of the specific rights being claimed in the individual case;
  2. The justifications for interfering with or restricting each right; and
  3. The proportionality of the interference or restriction.

The extent to which publication is in the public interest is of central importance, as well as the contribution that publication will make to a debate of general interest. Other relevant factors are:

  1. How well-known the person concerned is and what is the subject of the report;

  3. The prior conduct of the person concerned;
  4. The method of obtaining the information and its veracity;
  5. The content, form and consequences of publication; and
  6. The severity of the restriction or interference and its proportionality with the exercise of freedom of expression.

The Supreme Court made it clear that in this sort of case, the reasonable expectation of privacy the accused benefits from is unlikely to be outweighed by the publisher’s right to freedom of expression.

Further discussion on the decision in ZXC can be found here at our media law blog.

Post-charge: Proceedings before the criminal courts

Once someone has been charged with a crime, the focus shifts to there being a presumption in favour of that information being published. In order to be charged, a conscious decision has been made (usually by a prosecuting lawyer, but sometimes a police officer) that there is sufficient evidence to provide a realistic prospect of convicting this person. There is therefore something more concrete than simply an accusation against the defendant by this stage.

The guidance for reporting restrictions in criminal courts was recently updated to reflect the new Criminal Practice Directions 2023, which came into force on 29 May 2023. It aims to distil and explain the relevant legal provisions and principles so they are clearly understood and properly applied in practice. They can be found here.

The open justice principle

The general rule is that the administration of justice must be done in public, the public and the media have a right to attend all criminal proceedings and the media is permitted to report those proceedings fully and contemporaneously. Open justice is central to the rule of law. It is not sufficient for justice to be done; it must also be seen to be done. Open justice helps to ensure that trials are conducted fairly and assists in providing public scrutiny of the trial process, helping to maintain the public’s confidence in the criminal justice system.

Any restriction on these usual rules will be exceptional. It must be based on necessity. It is not sufficient that something said in court is likely to cause embarrassment or damage someone’s reputation. Often a court can impose other measures, such as allowing a witness to give evidence behind a screen or anonymising them, which can provide the required safeguards to witnesses to allow them to give their best evidence, but also ensuring proceedings can continue in public.

The necessity test requires a court to consider that even if parts of the hearing should take place in private, other parts can be heard in public. If so, the court must revert to open proceedings as soon as the exclusion of the public ceases to be necessary.

Should a party wish for restrictions to be imposed on reporting proceedings, the burden is on that party seeking the restriction to establish that the restriction is necessary on the basis of clear and cogent evidence.

If a court grants reporting restrictions, the terms of any order restricting reporting must be proportionate – going no further than is necessary to meet the relevant objective.

Exceptions to the open justice principle

There are however various exceptions to the open justice principle, which are detailed below.

The court may exclude the public where it is necessary to prevent harm being caused to national security, such as disclosing sensitive operational techniques, or identifying a person whose identity should be protected for strong public interest reasons, such as an undercover police officer.

The court has a discretion to exclude the public (but not bona fide media representatives) from the testimony of anyone under 18 in any proceedings relating to an offence against or conduct contrary to decency and morality.

The court also has a discretion to exclude anyone during the evidence of a child or vulnerable adult witness in cases involving sexual offences where the witness is, or may be, intimidated. The media is however usually allowed to remain during such evidence.

Further, in certain cases where the defendant has pleaded guilty or failed to respond to the statutory notice (e.g. in relation to a motring offence), a single magistrate may sit anywhere (other than in court) and decide and sentence that defendant.

Members of the public are also generally excluded from attending Youth Court proceedings, although this does not include members of the press.

Automatic reporting restrictions

There are also some circumstances where automatic reporting restrictions apply. These are statutory exceptions to the open justice principle. These include the following cases.

Complainants of sexual, modern slavery or female genital mutilation offences are given lifetime anonymity, unless they consent in writing to being identified. Their anonymity can also be lifted by the court in other limited circumstances, namely where the complainant is subsequently prosecuted for perjury or to encourage defence witnesses to come forward.

Rulings at hearings that have taken place before a trial has concluded are usually not allowed to be reported until after the trial has taken place. The court can lift those restrictions earlier where it considers it is in the interests of justice to do so.

Reports of special measures directions and directions prohibiting the defendant from cross-examining witnesses cannot be published until the trial(s) of all defendant(s) are concluded, unless the court orders otherwise.

Reports of the Prosecution’s notices of appeal against rulings and decisions based on whether to adjourn proceedings or discharge the jury cannot be published until the trial(s) of all defendant(s) are concluded.

The media cannot publish the name, address, school or any matter likely to identify any child or young person concerned in Youth Court proceedings. The Youth Court may lift this restriction in exceptional circumstances. However when doing so, the court must give great weight to the welfare of the child and must not simply name them for additional punishment.

Contempt of court

It is a contempt of court to publish anything to the public which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced, even if there is no intent to cause such prejudice. This applies to all ‘publications’, which is defined very widely as “any speech, writing, programme included in a programme service or other communication in whatever form, which is addressed to the public at large.” This includes publication on all forms of media, including newspapers, radio, television, online media including social media, such as X (formerly Twitter) and Facebook. This rule applies once proceedings are ‘active’, which means the initial step must have been taken, such as a suspect being arrested.

There are three specific defences to this rule, namely:

  1. A fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith;
  2. Discussions in good faith of public affairs or matters of general public interest, providing the risk of prejudice to particular legal proceedings is merely incidental to the discussion; and
  3. Publishers and distributors to show they took reasonable care and did not know or have reason to suspect proceeding were active.

Comment

It was made clear in the Leveson Inquiry that suspects should not be named pre-charge, and that has been adopted in various guidance documents issued by the College of Policing and the Independent Office for Police Complaints. This is largely due to the risk naming someone accused of a crime poses to their reputation and the irreparable damage it can cause. There is often no going back from such publication. It would be wholly disproportionate to name someone accused at this stage, as there may be little more than the original allegation in terms of evidence against them indicating that they are guilty of such a crime. There are only exceptional and clearly identified circumstances where publication of accused’s names and information pertaining to the police investigation should be published, for example where there is an immediate risk to the public or a threat to life.

Once someone has been charged, they will appear in a criminal court and the open justice principle will lead to their public identification as having been charged with a criminal offence.

The open justice principle directs that criminal proceedings should ordinarily be conducted in public and allowed to be published. Exceptions to this are generally when it is in the interests of justice to restrict public access and/or reporting, and where proceedings could be prejudiced.

There is emphasis within the guidance of the reporting of proceedings being fair, accurate and contemporaneous. Therefore it is important for anyone reporting criminal proceedings to ensure their reports are just that. They must also ensure that their reporting is not going to create a risk of the criminal proceedings being prejudiced, otherwise they could find themselves liable for contempt of court. This is increasingly important, due to the ease with which information is available and can be disseminated online. This in turn risks reports being reposted without the author’s knowledge or consent, and occasionally being altered, risking prejudice being caused to the proceedings.

Further, there are several instances where reporting restrictions may apply automatically or the court may have decided to impose reporting restrictions or exclude the public. It is therefore important for anyone publishing anything relating to criminal proceedings to ensure they check there are no restrictions upon the reporting of the proceedings, otherwise they could land themselves in trouble.