XKF v The British Broadcasting Corporation (BBC)

On an interim application to restrain broadcast, the court must ordinarily be satisfied that success at trial is more likely than not, although exceptionally severe potential damage may justify relief below that threshold. A reasonable expectation of privacy is assessed objectively and multi-factorially. In a conflict between Articles 8 and 10, neither right has automatic precedence; the court must intensely focus on the specific rights and apply proportionality. A person may have a reasonable expectation of privacy in sincere practical efforts to rehabilitate after criminal convictions, even where the convictions themselves may attract limited privacy protection. Publication may be restrained where identifying or selectively filming that person is unnecessary to the legitimate public-interest aim and materially jeopardises rehabilitation.

The applicant, a former police officer whose convictions had become spent, sought interim relief preventing the BBC from broadcasting footage of a doorstep interview near his home and from revealing information likely to identify his new identity and location. The proposed programme concerned the Criminal Cases Review Commission and included allegations relating to a murder investigation in which the applicant had been involved.

The central issues were whether the applicant was likely to establish a reasonable expectation of privacy, whether the proposed material would interfere with his rehabilitation, and whether the interference with the BBC’s freedom of expression would be proportionate.

1. Interim threshold. The applicant was required to show that he was more likely than not to succeed at trial. The case did not involve the exceptional severity which might justify relief where that threshold was not met.
2. Privacy. The relevant question was not directly whether the applicant had privacy in his spent convictions. It was whether, despite his past, he had a reasonable expectation of privacy in his sincere practical attempt to rehabilitate himself. His new qualifications, employment, home and social relationships supported that expectation. He was entitled to protection against being unexpectedly confronted near his home and required to reveal his new identity or address matters from the distant past.
3. Articles 8 and 10. Neither right took precedence. The court had to focus intensely on the comparative importance of the specific rights, the justification for interfering with each, and proportionality. The BBC’s legitimate interest in investigating and reporting potential miscarriages of justice did not require this method of approach or publication.
4. Proportionality. The doorstep interview and selective broadcast risked creating an unfair impression of evasiveness. They did not materially inform viewers about the underlying case, particularly once the applicant was willing to engage by email. Preventing broadcast of footage near his home and material enabling ready identification went no further than necessary to protect his rehabilitation. The injunction therefore represented a proportionate interference with the BBC’s rights.
5. The relief sought was granted in substance: the BBC was restrained from broadcasting the specified footage and from revealing information likely to identify the area in which the applicant lived and worked or his new name.

First-instance decision of the High Court (Queen’s Bench Division). No prior appellate decision is stated in the judgment.