Confidentiality in Criminal Investigations. Can a suspect expect a right to privacy?

On 15 May 2020 the Court of Appeal ruled in the case of ZXC v BLOOMBERG that individuals who come under suspicion of having committed a criminal offence had, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and their involvement in that criminal investigation, up to the point that they are formally charged with a criminal offence.

The Court of Appeal judges confirmed, however, that the right to privacy is not unqualified during the criminal investigation but that this is the legitimate starting point.

The case in brief

The case concerned a media organisation, ZXC, that had purportedly misused (in an article they published) the private information of the subject Z (employed by Bloomberg LP) who was involved in a criminal investigation.

This article contained information that was in a letter of request sent by a UK law enforcement body to a foreign state’s authorities seeking assistance with its investigation into the commission of criminal offences by Z.  ZXC appealed against a decision that it had, in fact, misused the private information by publishing the article containing information about Z and the criminal investigation. 

The article in question published details of the UK law enforcement agency that was investigating corruption allegations in relation to the subject. Z was an executive of the company, at the relevant time, no criminal charges had been brought against him. 

The court found that Z had a reasonable expectation of privacy in the information published and that his ECHR Article 8 rights outweighed the appellant’s Article 10 rights.  The court granted an injunction regarding future publication and awarded damages in Z’s favour.

The decision 

The judgment in essence concludes that those who come under suspicion by an organ of the state (which by analogy would include the police) have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and that this reasonable expectation prevailed up to the point of formal charge.

The court additionally ruled that this was not in general dependant on the type of crime being investigated or the subject’s public characteristics.  There was a line to be drawn between public and personal aspects of private life when considering whether there was a reasonable expectation of privacy.  Whether information related to the public or personal aspects of an individual’s life would depend on a multi – factorial analysis in each case and the balancing exercise to be undertaken as between the expectation of privacy and freedom of expression, for example, by way of press reporting.

Reporting considerations 

There are clearly important messages to be taken from this judgment particularly, in relation to private individuals employed by public bodies who find themselves in the unfortunate positon of being the subject of a criminal investigation and, what they should be considering in relation to the disclosure to third parties of that fact. 

Specifically, for example, healthcare professionals who are concerned about self-reporting to their regulators and employers considering referring healthcare employees in that regard.  In saying this, it should not be forgotten that all UK regulated professionals are subject to specific rules and codes of professional conduct and the respective self-reporting requirements contained in those rules and codes.

As a general comment obviously from that perspective, the “goalposts” will shift when an individual is formally charged with a criminal offence either in relation to the professional or private lives. 

How we can help

Our healthcare team comprises of lawyers who are vastly experienced in advising on the law relating to privacy and confidentiality as well as in professional regulatory and criminal investigations and proceedings.

Don’t hesitate to get in touch if we can help you with any legal issues arising either generally or in relation to the above.

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