The front page news and rolling coverage, led by the BBC, which accompanied the arrest this week of Andrew Mountbatten-Windsor, formerly Prince Andrew, had echoes of the same news organisation’s coverage of a police raid on the home of Sir Cliff Richard back in 2014.
On that occasion the BBC ended up being ordered by the Court to pay £210,000 by way of damages and later agreed a final settlement of around £2m in relation to his legal costs.
That decision and others of the courts (including the Supreme Court) have held that there is a legitimate starting point that a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation. The rationale for this is the recognition that the publication of such information can have a tendency to cause irremediable and profound damage to the subject’s reputation, physical and social identity, and their right to establish and develop relationships with other human beings and the outside world owing to the stigma which it is accepted is associated with being under investigation even prior to charge. This will generally remain the case where the investigation concludes in a caution or warning.
Accordingly, the starting point is that the publication of Mountbatten-Windsor’s arrest, raises the prospect of a possible misuse of his private information. Such a starting point may however be displaced due to, for example, the circumstances of the arrest or prior public disclosure of the information or otherwise in instances where law enforcement bodies need to respond to a threat to life, issue a warning, or take other measures for the prevention or detection of crime.
In the present case, media publishers have seemingly taken a view that there is a greater public interest in publication than would otherwise ordinarily be the case by virtue of Mountbatten-Windsor’s position. He is the first senior member of the Royal Family in modern history to be arrested with it being more than 350 years since King Charges I was charged with treason during the English Civil war, subsequently being found guilty and sentenced to death. No doubt a view was also taken that Mountbatten-Windsor is unlikely to sue in his present circumstances.
Reasonable Expectation Upon Charge
More generally, an individual will in any event only generally retain a reasonable expectation of privacy concerning a criminal investigation up until the point of criminal charge, at which point any reasonable expectation of privacy is ordinarily lost owing to principles of open justice and the need to secure public confidence in the administration of justice in a free country.
Application to Historic Criminal Investigations
Whilst an individual may ordinarily lose any reasonable expectation of privacy with regards any criminal proceedings against them at the point of charge, however, there may well be circumstances where such matters can once again constitute a matter in which an individual may have a legitimate privacy interest due to the passage of time. Accordingly, the courts have recognised that the fact that a conviction has become spent will normally be a significant factor prohibiting any further use or disclosure of such information, albeit this will depend upon all of the circumstances of the case. Applying the same logic, it may well be thought that an individual who was charged but ultimately acquitted of an offence may have a stronger claim still to maintain privacy in respect of information concerning such historic allegations about them.
Summary
In summary, while the general rule is that individuals have a reasonable expectation of privacy concerning criminal investigations prior to being charged, this expectation is subject to a fact-specific inquiry and may be reduced or overridden in certain circumstances. An individual may also be able to a claim a legitimate privacy interest in respect of historic allegations of wrongdoing, particularly if any conviction has become spent or they were otherwise acquitted.
For More Information On Claims for Misuse of Private Information
If you are in need of legal advice, or would like to understand more about claims for misuse of private information, within the context of a criminal investigation or otherwise, please contact our expert legal team on 0207 427 5970 or at [email protected]. See also our privacy legal practice HERE.