Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Anonymising the suspect- The UK Supreme Court delivers blow to press freedom

The unanimous decision by the UK Supreme Court on 15th February 2022 in Bloomberg v ZXC to give powerful legal authority to the right of criminal suspects before charge in the UK to remain anonymous is not only a terrible blow to media freedom.

By over-protecting individuals being investigated by any state agency with ‘the reasonable expectation of privacy’, it will have consequences that are far more damaging.

Bloomberg v ZXC ruling by UK Supreme Court. Summary of judgement presented by Lord Hamblen

The highest court in the UK has given the green light for a cloak of secrecy that will protect the cleverest of psychopaths, criminal narcissists, ruthless figures in organised crime, and rich, powerful fraudsters from journalistic investigation and exposure.

The ordinary citizen will be denied the right to information so that they can make their own judgements about businesses, corporations and people under suspicion for every kind of crime possible from murder, terrorism, rape, child abuse to multi-billion pound fraud and embezzlement.

This legal tool of protection and shield of scrutiny will protect the current and future Robert Maxwells of the business and financial world, serial killers, particularly with middle-class and professional profiles, such as Dr. Harold Shipman, and serial rapists and child abusers such as Jimmy Savile.

This is a situation where, rather rarely, the Guardian and Sun newspapers appear to be in broad agreement. A Guardian editorial said the ruling is a threat to legitimate investigative reporting.

It warned: ‘The right to privacy and protection from reputational damage is in danger of becoming a catch-all instrument with which the powerful and wealthy can erect a screen around the entirety of their lives and shut down scrutiny. A healthy democracy requires a better balance to be struck between the freedom of the press and the right to privacy.’

The Sun newspaper said the ‘decision to protect the privacy of all suspects puts the public in far greater danger.’

Its editorial warned protecting the ‘privacy of all suspects by granting anonymity until charge is not just wrong. Nor is it only a monstrous and sinister assault on public interest journalism, though it is that. It is a gift to criminals which puts the public in far greater danger. It even allows police, their reputation already in shreds, to act in secret without scrutiny.’

The paper added: ‘Consider TV veteran [Stuart] Hall. Had he not been named he might now be living out his days fondly recalled for It’s A Knockout instead of reviled as a paedophile.’

Such a legal move in the USA would be regarded as unconscionable. This is because pragmatic priority is given to freedom of the media through the constitutional First Amendment.

It is a reminder of how undemocratic and oppressive media laws are in Britain. The US Supreme Court case of Sullivan v New York Times in 1964 means in libel the burden of proof is on the claimant who can only succeed in public interest cases by proving reckless disregard of the truth or that the publication was actuated by malice.

This was followed by the US Supreme Court case of Time, Inc v Hill in 1967 which raised the same threshold of public interest freedom of expression in relation to privacy rights. Putting it simply an honest mistake in defaming anybody or intruding into their privacy in a public interest context is protected from litigation by the First Amendment.

However, UK journalism seems to be light years away from the privileges of US media law where ZXC, ironically a US citizen working for the company operating overseas, would be named along with the UK Legal Enforcement Body investigating them for crime.

In Britain the information is censored into alphabet soup style terminology. Even guessing the state investigating agency would be a breach of the reporting restrictions so the ruling and media are left bandying about the ludicrous acronym/pseudonym UKLEB.

How did we get here is an important question to ask and sadly the answer is lamentable and sordid. In 1964 the UK’s then highest court in Lewis v Telegraph ruled that it should not be libellous to report accurately that somebody was being investigated by the police.

The 1981 Contempt of Court Act recognised that the strict liability rule of preventing a substantial risk of serious prejudice in jury trials should apply from the time a suspect was arrested, not charged.

The legislation clearly assumed at the time that police would on occasion brief or confirm to reporters the identity of arrested suspects or people ‘helping them with their enquiries.’

There was an acceptance, confidence and belief even, in the public’s ability to accept that accused persons are ‘innocent until proven guilty,’ and eventual exoneration means just that rather than the continual stain of there being ‘no smoke without fire’, and ‘mud always sticks.’

There were no enforceable civil law privacy rights in the context of protecting reputation, identity and honour against the media. Max Mosley’s anti-Semitic and fascist father Sir Oswald learned this in an unsuccessful action against the United Kingdom at Strasbourg in 1968.

Max Mosley qualified as a barrister specialising in copyright law and went on to became a global public figure in Formula One Racing.

The successful son of Sir Oswald, who had so enthusiastically campaigned for the racist and bigoted politics of his father when a young man, would use his wealth and skill to invest in the campaign for privacy rights in the 21st century.

The Human Rights Act 1998 made Article 8 privacy a legitimate aim, a legal prescription, and vectored media privacy rights recognised at Strasbourg into the litigation of the British courts; something Max Mosley would benefit from in his action against the News of the World in 2008.

The Guardian newspaper was part of the campaign against any legitimate public interest in the private lives of celebrities and the ‘kiss and tell’ convention of tabloid journalism. This was a crusade against tabloid journalism which ‘destroyed human lives.’

Police and intelligence officers who retired into the private security industry taught tabloid journalists how to hack phones. The Guardian would be there to expose the scandalous and widespread practice mainly in tabloid journalism.

In fact, their exaggerated claim that News of World journalists actually deleted mobile phone messages of the murdered 14 year old schoolgirl Milly Dowler may have been the tipping point in the Rupert Murdoch and News International decision to close the paper in 2011.

In 2011, Parliament decided that the unjust smearing of teachers by pupils making false allegations against them required statutory anonymity for any investigation and arrest unless specifically charged.

The Leveson Inquiry of 2012 made recommendations that ended the police practice of being prepared to identify individuals being investigated and arrested. The disastrous decision of the DPP, CPS and police forces to effectively end the presumption of innocence of accused persons in sexual offence cases led to the scandalous and unjust vilification of former Cabinet minister Sir Leon Brittan, ex Armed Forces chief and D-Day hero Field Marshal, Lord Bramall, former Conservative MP Harvey Proctor, and the journalist and broadcaster Paul Gambaccini.

The independent review of the Met Police Operations Midland and Vincente by retired High Court Judge Sir Richard Henriques in 2019 recommended statutory anonymity for crime suspects. He said: ‘I sincerely believe that statutory protection of anonymity pre-charge is essential in a fair system.’

In 2018 the BBC failed in its defence of the privacy action brought against it by Sir Cliff Richard over their reporting of the South Yorkshire police investigation into allegations of sexual offences for which he was fully exonerated. Mr Justice Mann said that the BBC would have breached Sir Cliff Richard’s privacy even if they had simply run a non-sensational copy item in a read news bulletin.

It is against this background that the UK Supreme Court decision in Bloomberg v ZXC comes as no surprise at all. As Mathilde Groppo, Senior Associate in the well known media law firm of Carter-Ruck observed: Article 10 [freedom of expression] does not provide a universal justification for inflicting serious (and often wholly unjustified) damage on the reputations of suspects. This decision will be welcomed by privacy campaigners and the public generally.’

It is not welcomed by the Chartered Institute of Journalists.

Our members would never have dreamed of hacking phones, would do everything in our power to avoid unfairly and unjustifiably trashing the reputations and private lives of innocent people.

And we have always despaired of editors and proprietors who have damaged the very public interest they were supposed to protect and uphold.

The virtual civil war over what should be regarded as ‘righteous and proper public interest journalism’ between UK media groups and their editors over the last thirty or so years has done the profession and our democracy no favours at all.

They know who they are.

It may take a generation or two to return to the media law of 1981 or even 1964. Bloomberg would now struggle to take its case to Strasbourg and win.

Is Parliament likely to legislate to end anonymity for crime suspects? Are we ever likely to enjoy a US First Amendment style protection for public interest journalism and its mistakes?

We suspect the politicians and the public are unlikely to be in favour for a very long time. However, we will do our best to advance the argument and persuade against the tide.