The political fall-out from Mr Justice Mann’s ruling in Sir Cliff Richard’s successful privacy action against the BBC over their naming of him as a suspect in a sexual assault inquiry has had the flavour of the Brexit debate.
Partiality, polemicism, win or lose, right or wrong, good and evil.
It’s either one way, or the other.
The judge’s reasoning and interpretation of the law is fully supported and so is his assertion that ‘It is simply wrong to suggest there is now some blanket restriction on reporting investigations.’
The BBC had been strongly urged not to appeal.
On the other hand there has been consensus among mainstream media publishers in press and broadcasting that the ruling does set a disturbing precedent, is a significant blow to media freedom, and needs to be resisted.
The ruling and its consequences require analysis attended by some measure of even-handedness and proportionality.
Why professional journalists disagree with the judge’s ruling
Professional journalists at the BBC and elsewhere are aggrieved it has been ordered to pay £210,000 in damages and much more in legal costs for reporting accurately that Sir Cliff Richard had been investigated by the police for historical child sexual assault claims.
They had repeatedly reported his side of the story and only said they were allegations. They reported that the police interviewed him, did not arrest him, and later fully exonerated him. They always reported his position that there was no truth whatsoever in the allegations.
They think it unfair that damages have to be paid for a story that was true and when they consistently and repeatedly reported his denials, expressions of innocence, and final exoneration.
They do not understand why it was not in the public interest to name him when there was an intensive and widespread political and public debate about well-known celebrities being subject to historical child sexual allegations some of whom were later tried, convicted and jailed, and others later cleared but complaining their reputations had been unfairly destroyed.
There have been significant judge led inquiries into the issue and multimillion pound police investigations.
They honestly cannot understand or accept why it was not in the public interest to publish the truthful information that the police were investigating Sir Cliff Richard- one of Britain’s pre-eminent and powerfully influential entertainers whose public interest status par excellence has always been heavily defined by his avowed Christianity.
In this context, even if it was accepted he had a reasonable expectation of privacy when suspected of crime, professional journalists believe they had a public interest duty to report that the police were investigating Sir Cliff Richard for sexually assaulting a child at a Billy Graham meeting in Sheffield in 1985.
The BBC were truly shocked by the ruling largely because they considered it as a retrospective penalty for doing something at the time that custom, practice and law had always permitted.
Privacy law and culture
The professional news and journalistic culture of this country has not come to terms with how the law on media privacy has been developed by the courts and apparently supported by public and political opinion over the last 18 years.
There is a severe dislocation in values and understanding between journalistic culture and the legal, public and political spheres.
Sir Cliff Richard v BBC was a contested media privacy case involving two of the most powerful parties you could ever find in British public life.
It is an action that would not have been possible prior to the year 2000, the year the 1998 Human Rights Act came into force, and which introduced into English primary law Article 8 of the European Convention on Human Rights: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
Parliament decided under section 12(4) of the Act that ‘The court must have particular regard to the importance of the Convention right to freedom of expression’ when litigation related to journalistic matters. In this situation the court must consider the extent to which it was ‘in the public interest for the material to be published.’
Most professional journalists understood from this that Parliament required that the courts should give pragmatic priority and consideration to freedom of expression particularly when there was public interest in the material.
Source of Sir Cliff Richard’s reasonable expectation of privacy
The view that Parliament instructed the courts to give pragmatic priority or ‘particular regard’ to freedom of expression in litigation over journalism said to be in the public interest was not shared by the UK courts when they began hearing media privacy litigation.
2004 was the year that supermodel Naomi Campbell had established in the UK’s then highest court, the judicial committee of the House of Lords, that a respect for the right to media privacy did exist in law as a result of the Human Rights Act.
The approach of the majority of the Law Lords in her case was to adopt a balancing exercise between Article 8 privacy and Article 10 freedom of expression.
It was recognised that there was a right to a reasonable expectation of privacy in a wide range of situations that could only be defeated by public interest in publication.
The right to media privacy also included protection from damage to reputation caused by the publication of truthful though private information.
In the same year Lord Steyn in Re S(FC) (A Child) (Appellant)  set a binding precedent that neither respect for privacy nor freedom of expression ‘has as such precedence over the other.’
He set out the way judges in future would approach litigation of this kind: ‘…where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.’
Lord Steyn and his fellow judges would deny that this is judicial activism on their part and a rejection of Parliament’s intentions.
They would say the Human Rights Act gives them the power to take into account European Court of Human Rights case law that also advocates ‘the ultimate balancing test.’
Long ago in the early 1960s there was case law making it clear that reporting that somebody had been helping the police with their enquiries when they were subsequently neither arrested nor charged was not libellous.
The media had always recognised that they had a public duty to publish stories about individuals who were suspected of crime, had had their home and premises searched as a result of a police enquiry, and when they were being interviewed by the police whether or not they had been formally arrested.
The public interest intensified where an individual was well-known, powerful, had public figure status, or was part of a public interest set of circumstances and narrative. The law protected publication if the facts were accurate.
But the developing law of privacy as evidenced by Mr Justice Mann’s ruling fundamentally changed this situation.
Most of the commentary on the Sir Cliff Richard case has failed to acknowledge that Parliament in the 2011 Education Act provided statutory life-long anonymity for teachers accused of criminal conduct against the students they teach unless and until such time they were formally charged by the police.
Teachers became the first group of professional people in British legal history to be given automatic anonymity when they are accused of a criminal offence at work.
There was a short period between 1976 and 1988 when men accused of rape offences had statutory anonymity unless and until they were convicted by the jury in a crown court trial.
Mr Justice Mann confirmed that the Sir Cliff Richard and BBC case was legally significant in advancing a reasonable expectation of privacy for criminal suspects. It was not something which been ‘clearly judicially determined, though it has been the subject of judicial assumption and concession in other cases.’ (Judge’s ruling at paragraph 234).
Four rulings at High Court and Appeal Court level in 2014, 2015, 2016, and 2017 had developed the case law: PNM v Times Newspapers Ltd, Hannon v News Group Newspapers Ltd, ERY v Associated Newspapers Ltd, and ZXC v Bloomberg LP.
He also strongly drew on the pronouncements of Sir Brian Leveson in his inquiry report into the Culture, Practices and Ethics of the Press in 2012.
He cited the importance of Leveson’s view ‘…that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.’
The Judicial Response to the Law Commission Consultation Paper on Contempt of Court in 2013 fully endorsed Leveson’s view.
Mr Justice Mann called upon the 2013 College of Policing’s Guidance on Relationships with the Media which appears to repeat word for word Sir Brian Leveson’s prescription: ‘… save in clearly identified circumstances, or where legal restrictions apply, the names or identifying details of those who are arrested or suspected of crime should not be released by police forces to the press or public.’
He took on the observations of Sir Richard Henriques in his ‘Independent review of the Metropolitan Police Service’s handling of non-recent sexual offence investigations alleged against persons of public prominence.’
Sir Richard had been discussing the position of prominent and well known entertainers who ‘are all victims of false allegations and yet they remain treated as men against whom there was insufficient evidence to prosecute them. The presumption of innocence appears to have been set aside.’
Critical analysis of Mr Justice Mann’s ruling
It can be argued that Mr Justice Mann has cherry-picked from extra-judicial sources and, indeed dissenting views in case law that question the capacity of the public to accept legal exoneration and not guilty verdicts.
This is an astonishing jurisprudential position to take. It questions the very impact of the rule of law and treats the media and its general public audience as a malicious, prejudiced, uncontrollable, rabid and witch-hunting mob incapable of respecting and acknowledging the very justice inherent in the due process of the law.
Mr Justice Mann’s reasoning in paragraph 248 of his ruling is contentious: ‘If the presumption of innocence were perfectly understood and given effect to, and if the general public was universally capable of adopting a completely open- and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards (assuming no charge) then the position might be different. But neither of those things is true. The fact of an investigation, as a general rule, will of itself carry some stigma, no matter how often one says it should not.’
It can also be argued the judge made a fundamental mistake in law in making the risk of some stigma as justification for reasonable expectation of privacy in these circumstances to take precedence. He was wrong to decide that the inevitability of some stigma residing in some people should trump the public interest of a media publication reporting the criminal justice process and identifying an individual suspected of a criminal offence.
Perhaps Mr Justice Mann would have benefited from being referred to Lord Devlin’s words in Lewis v Telegraph 1964: ‘Suspicion of guilt is something very different from proof of guilt […] A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done.’
No evidence has been produced showing that anything in the BBC’s coverage implicitly or explicitly suggested there was fire behind the smoke.
If that had been the case Sir Cliff Richard could have sued the BBC and any other media publication responsible for such coverage for libel.
Sir Cliff Richard said in interviews after his High Court victory that he believed the BBC ‘took it upon themselves to be judge, jury, and executioner.’
But Sir Cliff Richard was not being tried by the BBC. He was simply the subject of reporting about a police enquiry investigating an allegation against him that the police eventually decided did not merit arrest, charge and criminal proceedings.
Failure to give weight to UK Supreme Court Precedent
It could be argued that Mr Justice Mann does not give sufficient weight to the powerful authority in the UK Supreme Court rulings of In re Guardian News and Media Ltd in 2010 and PNM v Times Newspapers Ltd in 2017.
In the Guardian 2010 case Lord Rodger, in a unanimous ruling, specifically referred to the publication of the names of defendants in advance of criminal trials and observed:
‘In allowing this, the law proceeds on the basis that most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law. That understanding can be expected to apply, a fortiori, if you are someone whom the prosecuting authorities are not even in a position to charge with an offence and bring to court.’
The general principle on public interest in these circumstances established by the UK Supreme Court is the default position of most members of the public accepting innocence until proved guilty; not the risk that some may not.
In PNM in 2017 Lord Sumption in the majority ruling 5-2 said: ‘The sexual abuse of children, […] is a subject of great public concern. The processes by which such cases are investigated and brought to trial are matters of legitimate public interest. The criticisms made of the police and social services inevitably reinforce the public interest in this particular case.’
Yes, this case can be distinguished from that of Sir Cliff Richard, but its similarity and relevance is that PNM was arrested but not charged and sought anonymity by injunction when mentioned peripherally in the criminal proceedings of other men.
Lord Sumption said the public interest in the identity of individuals involved in the criminal justice process ‘depends on (i) the right of the public to be informed about a significant public act of the state, and (ii) the law’s recognition that, within the limits imposed by the law of defamation, the way in which the story is presented is a matter of editorial judgment, in which the desire to increase the interest of the story by giving it a human face is a legitimate consideration.’
Both Supreme Court rulings acknowledged and respected the competitive and commercial nature of public interest journalism.
Lord Rodger explained in 2010: ‘The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.’
The BBC would not be able to justify its income from the license fee if its news programmes did not successfully compete for audiences.
In journalism the pursuit of the scoop, with what Mr Justice Mann and no doubt most members of the public would regard as a sensationalist style of coverage, has been fully recognized as a valid part of the public interest role of media publication.
That is why Lord Nicholls in Reynolds v. Times Newspapers in 1999 said:
‘it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression.
The press discharges vital functions as a bloodhound as well as a watchdog.
The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.’
It can be argued that this is a significant authority that Mr Justice Mann should have taken into account when carrying out his intense focus on the evidence in Sir Cliff Richard’s litigation.
Mr Justice Mann’s rejection of the BBC’s case
There is no doubt that public and political opinion are strongly sympathetic and supportive of Sir Cliff Richard’s successful action against the BBC.
His position on anonymity for criminal suspects is backed by an opinion poll conducted by YouGov where 86% of respondents support the anonymity of suspects under investigation and 62% favour anonymity for those on trial who have not yet been found guilty of an offence. The poll was conducted on 19thand 20thof July 2018 with a sample of 1669 adults in Great Britain.
Paragraphs 20 to 28 of Mr Justice Mann’s ruling offer a withering deconstruction of the reliability of the BBC’s witnesses.
Of the BBC’s reporter Daniel Johnson he said: ‘he was capable of letting his enthusiasm get the better of him in pursuit of what he thought was a good story so that he could twist matters in a way that could be described as dishonest in order to pursue his story.’
Of the BBC’s deputy to the Director of News, Fran Unsworth (who was later promoted to Director) he observed: ‘Her acts and thinking on the day, like the acts and views of others, were affected by the desire to protect the scoop.’ She was ‘tinged with wishful thinking and a bit of ex post facto convenient rationalization.’
The judge decided on the balance of probabilities to accept the South Yorkshire Police case that they felt pressurized into agreeing to tell the BBC when they were going to search Sir Cliff’s apartment in Berkshire.
They said they made that offer in order to prevent Mr Johnson publishing a story prior to the search, thereby potentially compromising it.
Mr Justice Mann decided the BBC did not give sufficient consideration to Sir Cliff’s reasonable expectation of privacy when they decided to name him as the suspect while at the same time using spectacular helicopter coverage of the search, which he condemned as a ‘significant degree of breathless sensationalism.’
He highlighted the content of emails between news editors and reporters that revealed the crassness and competitive hubris of journalists when working under pressure to deliver coverage that was entered for and received a nomination for the Royal Television Society award in the category ‘Scoop of the Year.’
In the light of a previous Law Lord recognizing the public interest in journalists discharging vital functions ‘as a bloodhound as well as a watchdog’, and acting ‘without the benefit of the clear light of hindsight’ is it possible the Judge has not evaluated the BBC’s conduct with the proper perspective?
He actually added £20,000 in aggravated (punitive) damages for the decision to enter the coverage for an award.
Has the judge properly taken into account Lord Rodger’s view that judges should accept that ‘editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information?’
The rejection of the BBC’s position on public interest
Mr Justice Mann rejected the BBC’s argument that it had a public interest duty to identify Sir Cliff Richard as a suspect when covering the police search of his home in England.
What is also significant is that in the absence of the hullaballoo helicopter sensationalism a boring copy read by a presenter in the studio naming Sir Cliff Richard would still have been a serious breach of his privacy:
‘A lower key report of the search and investigation (for example, done merely by a measured reading of the relevant facts by a presenter in the studio) would, on my findings be a serious infringement, and would not be outweighed by the BBC’s rights of freedom of expression.’
In cross-examination BBC deputy editor of News Fran Unsworth identified two BBC editorial guidelines on public interest that she believed applied in this case: ‘exposing or detecting crime’ and ‘protecting people’s health and safety.’
But the judge said ‘it was not clear to me whether she actually considered them at the time,’ and added:
‘…while I am prepared to accept that a journalist’s views on the justification of publication (or his/her absence of views) might assist the court in detecting the public interest in the balancing exercise, the ultimate question is one for the court, not for the journalist. So it does not help much if Ms Unsworth did not consider the guidelines, considered the wrong ones, or misinterpreted the right ones.’
Is it significant that when listing the BBC’s editorial guidelines on public interest in his judgement, he omitted ‘There is also a public interest in freedom of expression itself.’
Can it not be argued that Mr Justice Mann has not given fair consideration to the public interest defence position of journalists and editors who have to make decisions in the heat of competitive deadline pressures and without the benefit of hindsight?
Even the 2013 Defamation Act imposes a statutory duty on courts under section 4 to ‘make such allowance for editorial judgement as it considers appropriate’ when determining whether it was reasonable for a media defendant to believe that publishing the statement complained of was in the public interest.
Is Mr Justice Mann’s ruling a significant precedent?
Mr Justice Mann seemed to take exception to the mainstream media coverage of his ruling and said: ‘It is simply wrong to suggest there is now some blanket restriction on reporting investigations.’
Close reading of his ruling proves that he does set a precedent on a wide range of issues. He says so himself when declaring at paragraph 322: ‘I agree that the case is capable of having a significant impact on press reporting…’
At paragraph 248 he says:
‘It seems to me that on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached.’
His ruling creates a chilling effect for any news publication that wishes to name a suspect under police investigation. Editors now know that to do so will run the risk of an action for breach of privacy and this could be costly.
The position is inhibiting.
The legal cost liability is estimated to be in terms of millions of pounds.
We may be revisiting the chilling effect of disproportionate costs to damages that led the European Court of Human Rights in 2011 to decide in the Naomi Campbell case that the level of legal fees was a breach of Article 10 freedom of Expression.
The award of an additional £20,000 in aggravated damages for pursuing professional awards recognition of a breach of privacy story is certainly unprecedented.
It means that news publishers face being awarded damages against them for being competitive in the pursuit of scoops and awards for stories that could turn out to be breaches of privacy.
Mr Justice Mann stated more clearly than any previous case that in breach of privacy damages can be collected for harm to reputation- a remedy usually encompassed by libel law.
But in privacy, unlike libel, claimants are not required to prove that their reputations have suffered ‘serious harm, or a likelihood of serious harm.’
This is creating a telescoping and inequitable overlap between libel and privacy; particularly when privacy can be a remedy for truthful and untruthful information.
The case breaks new ground in making clear that there is a special damages liability for the consequences of a media breach of privacy when this triggers further problems for a claimant as a result of the behaviour of other people.
Special damages are to be assessed for the costs involved in employing lawyers and public relations experts to deal with the fall-out from the BBC’s coverage.
This includes a Facebook site called ‘Christians against Cliff,’ which contained ‘a large number of outrageous, highly offensive and defamatory allegations and remarks about Sir Cliff.’
His lawyers had to also head off attempts by other newspapers and broadcasters to publish false allegations, there was an attempted blackmail, potential US immigration difficulties, and a lost book deal.
There is one immediate lesson that all professional journalists, the BBC and media could learn from the case.
Absolute care and caution needs to be taken in electronic communications between journalists in the newsroom.
The kind of communications that have been traditionally common-place between reporters and their editors should never be allowed to be funnelled into the public arena of judgment and condemnation of media legal litigation.
The gallows humour, satire and irony that relieves stress and tension should be kept analogue, ephemeral and unrecorded.
The decision by the BBC not to appeal the case after Mr Justice Mann refused leave to appeal means that until another case emerges the issues and problems identified here will remain unresolved.
There is the possibility of a future direction of travel in reasonable expectation of privacy and anonymity in the criminal process that could well extend to the identity of people arrested, charged, put on trial, acquitted, and released after the completion of their sentences.
This is because of the emphasis Mr Justice Mann has placed on the problem of stigma never being checked by the presumption of innocence and indeed its legal declaration and confirmation through public exoneration and not guilty verdict.
It is unusual for all mainstream media publishers, including the Society of Editors, to join in a consensus about the judge’s ruling damaging media freedom and all the more disappointing that these concerns cannot be addressed by the higher courts.
While public and political opinion appears to support the ruling and Sir Cliff Richard’s campaigning for suspect anonymity, the situation could change.
Would the public be content if the leader of one of the main political parties, or key members of the Royal Family found themselves suspects in a serious criminal investigation and the media were prevented from making any identification?
During his lifetime the entertainer Sir Jimmy Savile was protected by the libel laws when over a 54 year period between 1955 and 2009, 500 people aged between 5 and 75 complained that he had sexually assaulted them.
With the burden of proof in libel on the media defendant news publishers were unable to publish allegations made against him.
It was feared that the credibility of his vulnerable and often disturbed victims would not have survived aggressive cross-examination in adversarial trials.
He was interviewed and investigated by the Surrey and Jersey police forces in 2007 and 2008 over indecent assault allegations, but the cases never proceeded to charge.
It can certainly be argued that Mr Justice Mann’s ruling will not assist any media investigation into another case like it.
It should not be the role of any judge or court to change laws that are strictly matters for Parliament, and in particular, the democratically elected chamber of the House of Commons.
Something as serious as the right of any criminal suspect prior to formal arrest and charge to anonymity is a constitutional issue that should be decided by Parliament; not by some single judge in the Chancery Division of the High Court who has not addressed and followed binding previous precedent from the United Kingdom Supreme Court.
Any party to legal proceedings should be subject to robust public criticism; particularly where the issue will not be tried by lay jury.
However, the BBC had come under vituperative public and political pressure not to appeal the matters of legal principle arising.
It is disturbing that rather than use the legal system, it has felt the need to directly contact the government and Parliament for redress.
The financial consequences of pursuing an appeal were clearly disproportionate in terms of the rising and accruing costs compared to the actual amount of general damages awarded.
The English legal system does not assist here in having so many levels and layers of appeal and potential redress.
Any freedom of expression and privacy dispute has the potential of six legal forums: High Court to Appeal Court to UK Supreme Court for injunctive relief, and the same three part staircase for any trial of the substantial issue.
This sorry case is a worrying precedent and there is no doubt that freedom of expression and the rights of the media have been left bruised and compromised.
We are a long way from the judicial rhetoric of the courts recognising that in a democracy the media must be allowed to perform their watchdog role as bloodhounds.
Time will tell if Sir Cliff Richard v BBC has replaced the bloodhound with a poodle.