Privacy - Sir Cliff Richard v BBC  

The High Court has now issued its judgement in the case of Sir Cliff Richard v BBC. Sir Cliff was suing for damages for breach of privacy. He had already received a payment of £400,000 from the South Yorkshire Police who had revealed to the BBC in 2014 that they were going to search his penthouse in a gated development in Berkshire. The BBC turned out in force to cover the search, complete with a helicopter filming overhead. It was on the TV on all channels throughout the day and in the press, both here and abroad, for a long time afterwards.

This all followed on from an allegation of sexual misconduct said to involve a minor in the 1980s at a Billy Graham evangelical rally at Sheffield. The investigation was dropped in 2016. Sir Cliff was never charged and denied the allegation. By the time the investigation petered out for lack of evidence, however, the damage had been done. His name had been dragged through the mud and his reputation as an entertainer badly tarnished.

The BBC had argued that, as journalists, they had a right or even a duty to report on allegations of this sort involving public figures, particularly one who was a practising Christian. Of curse, nothing that was published was other than the truth – a search had indeed taken place following the issue of a search warrant. It was done in connection with an allegation of under-age sex. Nothing else was said by the BBC to imply that Sir Cliff was guilty of any offence. That meant that he could not sue for defamation. He sued instead for breach of his privacy, a relatively new concept in British law.

Article 8 of the European Convention on Human Rights, was introduced into English law by the Human Rights Act 1998.  That Article reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

The BBC’s rights come from Article 10 -

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of ... the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence ...”

Where, as here, the two rights conflict, then a ‘Balancing exercise’ has to be carried out by the Court. It is this which has taken up most of the 120 pages worth of judgement. It is an interesting judgement (for a lawyer). The Judge had no difficulty in saying that Cliff Richard’s right to privacy had been infringed. There was an argument put forward by the BBC that no damages could flow from the breach of this right, but that is clearly not correct and the Judge so held. That means that the judge had to decide between the competing rights of the individual to privacy and the right of a free press to convey news to the rest of us.

He came down very definitely on the side of the individual. He said that even if the BBC had not given it the extraordinary amount of publicity it had, but instead confined itself to an announcement by a newsreader of the fact of the search, he would still have sided with Sir Cliff. The press and the TV channels are up in arms claiming that it will prevent us knowing what is going on amongst the great and the good and stopping investigative reporting from ever taking place again. Meanwhile, away from the hysteria, perhaps we could think about what the Judge has actually said.

He was dealing with a situation in which a search warrant had been obtained to search a (very luxurious) apartment to try to find evidence which may give support to the allegation of under-age sex. The BBC said that this meant that something serious was afoot, something authorised by a court, which tipped the balance in favour of reporting. From my recollections of time spent doing criminal law, however, obtaining a search warrant does not demand a high standard of proof of wrong-doing. It is sufficient for the police officer to say that he has a reasonable suspicion that a crime has been committed. That can be simply because someone has made an allegation and that there is no prima facie reason to believe that the allegation is false. That is all it takes. It doesn’t mean that there is evidence of guilt such as would persuade a jury to convict.

I’m sure that the police and the BBC are very much aware of the flimsiness of the case which needs to be made out in order to get a search warrant, but they decided to publicise the search in any event. Why? Because, they implied, it was against a background of people like their ex-employee, Jimmy Saville, who had managed to get away with attacks on kids over many years, relying on his public persona as a tireless worker for charity to suggest that any allegation must be made up. It was only after his death, when lots of people at last felt free to tell their stories, that the horrible truth came out. The press have since then taken the view that every allegation against a public figure must be publicised in order to let others, who may have been subject to the same attacks, realise that they can come forward and reveal what has happened to them. That, and it sells newspapers.

But we now know that in the case of so many public figures, what seemed at first to be a good thing, in encouraging genuine complaints to be made, has caused untold harm to numerous innocent people. Very many people subjected to this approach since then, have had their reputations trashed without any justification at all.

So then, how do we square the circle? Well it seems to me to be fairly easy. We cannot damage peoples’ reputations where accusations can and are so easily made by fantasists or people with a grudge against someone well-known. An investigation should not reveal to the public the name of the person being investigated unless there is some very compelling reason for it. The names of those simply suspected of a crime should not be released to the public except in exceptional and clearly defined circumstances. Once they are charged, however, that is a different matter. The case will need to come before the court and there should be no bar on publicity at that stage simply because of privacy considerations. The Judge, Mr Justice Mann, certainly did not suggest anything to the contrary and, in my view, having regard to the exceptional damage which can be wreaked in cases such as this, to reveal identities before any solid case has been made out is simply unjustifiable.

I rest my case.

Paul Buckingham

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