First published on the Brett Wilson Media Law Blog on 29 November 2016
A recent decision by Nicol J in ERY v Associated Newspapers Ltd  EWHC 2760 (QB) has found that a suspect in a police investigation has a reasonable expectation of privacy which is likely to trump the press’s right to freedom of expression.
Earlier this year, police investigating suspected financial crime raided the premises of two companies. These raids were reported in the local press, and subsequently came to the attention of the Mail group of newspapers. The Mail contacted a prominent and apparently wealthy businessman (ERY) concerned in the operation of one of the companies, seeking comment. An 'on the record response' was provided by ERY's public relations representative, following which an article about the matter was published on MailOnline. A press release was then given on behalf of ERY. At that stage ERY was not a suspect, or was not known to be a suspect, in the investigation. However, he was later asked to attend an interview under caution by the police, which he did on a voluntary basis.
When it became clear that the Mail on Sunday were aware of developments and planned to publish an article about the investigation, ERY sought an injunction against the publisher, Associated Newspapers Ltd, restraining them from publishing the fact of his investigation and interview by the police, on the basis that this information was private and confidential. An interim injunction was granted by Mr Justice Dove sitting as the out-of-hours judge on Saturday 15 October 2016, on a holding basis, owing in part to the shortage of time. The Claimant’s application for its continuation then came before Mr Justice Nicol (by which time a Claim Form had been issued, but no Particulars of Claim served). The Claimant was granted permission to bring the proceedings using the pseudonym ‘ERY’ (such orders being standard in privacy proceedings of this nature so as not to defeat their purpose).
The Defendant’s evidence before Nicol J was that the Mail on Sunday wished to publish an article referring to the investigation of the Claimant’s company, but that they did not intend to publish the fact that the Claimant had been interviewed under caution, and if that position changed, they would give the Claimant 24 hours’ notice before going to press.
The Claimant argued that an injunction was still necessary. Chief among the Claimant’s concerns was that any article about the investigation of his company was likely to be written in such a way as to convey the impression that he was being personally investigated, even if this was not expressly stated. The Claimant invited the Court to consider past articles by the Defendant’s titles about the Claimant and the company.
As a matter of law, the Claimant argued that the fact that the police were investigating him was a matter in which he had a reasonable expectation of privacy pursuant to Article 8 of the European Convention on Human Rights (‘ECHR’). In these circumstances, he believed that this right clearly outweighed the Defendant’s right to freedom of expression under Article 10 of the ECHR. This being the case, the Claimant was likely to succeed at trial, such that the granting of the injunction would not contravene section 12(3) of the Human Rights Act 1998 (which stipulates that there should be no relief to restrain publication before a trial unless a claimant is likely to satisfy the court that publication should ultimately not be allowed).
The Claimant also argued that the fact of the police investigation of him was confidential, and that if the Defendant’s source was a police employee or employee of his company, the disclosure to the Defendant would have been in breach of confidence. However, it was conceded that this offered no greater protection, in these circumstances, than the claim for misuse of private information.
Perhaps surprisingly, the Defendant conceded that the Claimant’s Article 8 rights were engaged and that, as matters stood then, Article 8 precluded publication of the fact of the Claimant’s interview under caution. The Defendant argued that in light of its open position – namely that it would not publish that fact, and that if its intention changed it would give the Claimant 24 hours’ notice in which to seek the assistance of the Court – an injunction could not be justified.
As to the wider position, the Defendant argued that there was a public interest in knowing that a police investigation into that company was ongoing. In addition, public statements had been made about the investigation, which were incomplete, or misleading, and the Mail on Sunday should be free to correct those. Finally, the Defendant wished to carry out its own investigations into the suspected wrongdoing, and the injunction sought would frustrate those as they prohibited it from ‘using’ the information. The Defendant conceded that a reference to the company being under investigation might well be taken as, or to include, a reference to the Claimant personally, given his prominent role in it. However, the Defendant was not in a position to exclude this possibility, because it would be untrue to say that the Claimant was not being investigated. Injunctions had to be drafted with precision and the Defendant should not be placed at risk of contempt by publishing the intended article about the company.
Nicol J noted that the Defendant was not intending to publish the fact of the Claimant’s police interview, and therefore he did not need to decide whether the Claimant had a reasonable expectation of privacy as to that fact, but he noted that the Defendant conceded that he did. That being the case, the Judge could see no reason why that expectation of privacy would not extend to the more general fact that the Claimant was being investigated, and he found that the Claimant’s Article 8 rights were likely to prevail over the Defendant’s Article 10 rights in that respect.
The injunction sought by the Claimant did not expressly prevent the Mail on Sunday from publishing an article about the company. The Judge recognised that such a story may have to be written with care to avoid conveying the meaning that the Claimant was also personally under investigation, but he did not believe that result to be inevitable. As such, he did not accept that the granting of the injunction would effectively prohibit the Defendant from publishing that story.
The word ‘using’ could be removed from the injunction, in order to allow the Defendant to continue its own investigations, provided it did not publish, communicate, or disclose the information concerned. Subject to this amendment, the Judge ordered that the injunction should continue. However, in light of the Defendant’s position and the fact that the police investigation was ongoing, he gave the Defendant liberty to apply for the order to be discharged or varied on 24 hours’ notice (though noting that such an application would have no prospect of success unless there had been a significant change in circumstances).
There has been debate in the past about whether a person arrested by the police has a reasonable expectation of privacy. The Claimant in this case was not arrested, but that is probably of little significance in this context. A person will only be interviewed under caution where the Police believe there are grounds to suspect them of having committed an offence. The police should only arrest where necessary. Whether the interview of a suspect is secured by means of an arrest or not may be of great importance to the suspect, but the public interest will lie in the bigger picture.
There is surely some inherent public interest in the work of the police and the course and conduct of their investigations, especially large scale investigations of serious offences. How this public interest can be balanced against the privacy rights of suspects – innocent until proven guilty – has long been in question. The Defendant in the instant case may have taken the view that by conceding the position in respect of the police interview, they would avert the possibility of an injunction and ensure a freer hand in their more general reporting. In fact, the result is that the Court has recognised a right of privacy, not merely in relation to an arrest or interview, but in the fact that an investigation is ongoing at all.
Given what can be gleaned about the police investigation in this case, it is difficult to see why any other suspect, save, perhaps, for one who is arrested very publicly, could not avail themselves of the same protection. The implications for press reporting of criminal investigations, should this decision stand, cannot be underestimated, and whilst the press will likely cast this decision as another victory for the rich and powerful, there is of course no reason why regular members of the public would not be offered conditional fee agreements to take on such battles.