In February 2022, the Supreme Court unanimously held in the landmark judgment in ZXC v Bloomberg [2022] UKSC 5 that an individual under criminal investigation “has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation”.¹ The court acknowledged the longstanding and repeated “concerns as to the negative effect on an innocent person’s reputation of the publication that he or she is being investigated by the police or an organ of the state”.² Criminal defence lawyers and reputation managers were hopeful that the landscape for individuals subject to investigation for criminal offences had turned a corner given the confirmation of the protection of the right to privacy for individuals. 

However, the court also made clear that the “rational boundary” for publication of information would be when the individual is charged with a criminal offence, so as to respect the “open justice principle” and that a charge was “of an essentially public nature so that there can be no reasonable expectation of privacy in relation to it”.³ The central consideration here – which was identified and acknowledged by the Supreme Court in Bloomberg – is the harm, distress and reputational damage that are caused following the reporting of investigation for criminal offences. This, of course, conflicts, with the general public interest in reporting wrongdoing, but also the principle of open justice. 

The stress, and distress, of investigations

The distress suffered by individuals under investigation, which is oft an alienating and sensitive process dependent on the allegations under investigation, was considered with great care by the High Court in Sir Cliff Richard v BBC (and another) [2018] EWHC 1837 (Ch).

In Sir Cliff Richard⁴, in a judgment that found in favour of Sir Cliff Richard for the harm and breach of privacy of the publication of a criminal investigation into him (that concluded with no action being taken), Mr Justice Mann concluded that while suspects under investigation generally suffer from distress and discomfort as a result of being investigated, the level of upset “pales into insignificance beside the effects of knowing that everyone knows”.⁵ As such, the question that falls to be asked again, is whether the court in Bloomberg was correct to conclude that the “rational boundary” of that of charge, or whether the correct position should be the conclusion of proceedings, once wrongdoing has been established conclusively by the tribunal.

Post Bloomberg

Individuals in general, let alone those in the public eye, face a particular type of stigma in the social media era, no matter the outcome of the investigation or proceedings. In the period since Bloomberg, a number of high-profile individuals have been charged with serious sexual offences, notably, musician Rex Orange County, former Premier League footballer Benjamin Mendy and Oscar-winning actor Kevin Spacey. 

What was notable about these cases, beyond the nature of the individuals involved, was that all had substantially varied media attention and interest, and concluded at different stages in the criminal proceedings that followed after charge. Importantly however, none of the proceedings resulted in a conviction. 

After the Bloomberg judgement, the editor-in-chief of Bloomberg News, John Micklethwait, wrote an op-ed decrying that the judgement should “frighten every journalist in Britain”.⁶ Micklethwait went on to cite a series of examples of high-profile corporate frauds, including Robert Maxwell, Polly Peck and Arcadia, as examples of conduct that would have gone unreported. However, that analysis ignores individuals and companies who are subjected to extensive (and oft sensationalist) reporting of alleged wrongdoing when investigated or prosecuted by government agencies, and yet, are ultimately acquitted of the charges, or the agency discontinues the case. 

By way of example, Rex Orange County was charged with six allegations of sexual assault, and had proceedings concluded against him after his case had been sent for trial in the Crown Court. There was limited contemporaneous media interest in the case, but it was reported that he had been charged with the allegations. His case was concluded following new evidence that wholly contradicted the complainant’s account. The Crown Prosecution Service (CPS) in a press release simply stated that the case was dropped as “our legal test for a prosecution was no longer met and so we will not be continuing a prosecution”.⁷ The CPS statement does not, of course, actually exonerate Rex Orange County. It is legalistic and formulaic, and in no way goes far enough to counter the position and reporting, less still the impact, of charging a person with six offences of sexual assault. Yet, it remains a matter of record that Rex Orange County faced the case, and of course, the media reports remain online and are accessible, despite the fact that the prosecution ultimately offered no evidence against him.

As a result of the stage of proceedings that both Rex Orange County reached, but also were concluded at, none of the evidence was public, or reported on. The court of public opinion has been fairer to Rex Orange County, likely because of his comparative niche fame (in contrast to others in this article) but also because of the lack of reporting. However, in cases where individuals are acquitted after trial, such as Kevin Spacey, or after a retrial, such as Benjamin Mendy, the same cannot said to be true.

In both cases, there was substantial reporting of the evidence provided by the complainants, and the cross-examination by the defendant’s counsel. The court of public opinion has derided Spacey and Mendy, having heard the evidence. Multiple commentators on social media, and traditional media, have challenged and questioned the decisions of the juries in Spacey and Mendy, and for many in the court of public opinion, both men are guilty.

In Bloomberg, the news outlet placed heavy reliance on the public’s deference to, and understanding of, the presumption of innocence (as protected by Schedule 1, Part 1, Article 6(2) of the Human Rights Act 1998) as a justification for why information ought to be published, but in high-profile cases where defendants were acquitted, the court of public opinion still judged Spacey and Mendy to be culpable. For example, there have been detailed op-eds asserting that Spacey should not be “uncancelled”  and that is without turning towards the recent and high-profile aftermath of former Premier League footballer Mason Greenwood following the conclusion of proceedings (without trial or conviction).

Reform on the horizon

How then does the decision to publicise help individuals, such as Spacey or Mendy, rebuild their lives following their acquittals? Is it right, or reasonable that individuals should even have to “rebuild” their lives and reputations as a result of being acquitted or cases discontinued? There is no easy answer, but in the age of trial by social media, it is likely that it will not be too long before courts, or Parliament, will have to grapple with the question again, which will be welcomed both by individuals and their advisors. 

Footnotes

¹ Paragraph 146 of Bloomberg

² Paragraph 80 of Bloomberg
³ Paragraph 77 of Bloomberg

⁴ Cliff Richard v BBC and CC of South Yorkshire Police [2018] EWHC (Ch)
⁵ Paragraph 375 of Cliff Richard
⁶ “U.K. Judges Are Helping the Next Robert Maxwell” (Bloomberg News: 16 February 2022)

⁷ “Rex Orange County: Singer has sexual assault charges dropped before trial” (BBC News: 22 December 2022)