WFZ v The BBC

Publication identifying a person arrested but not charged with serious sexual offences may be restrained where it creates a substantial risk of seriously impeding or prejudicing active criminal proceedings. The court must assess that risk at the time of publication and apply the criminal standard of proof. The risk may arise from publicity influencing complainants, witnesses, the suspect’s defence and the evidential basis of future charging decisions.

Separately, a person under criminal investigation between arrest and charge ordinarily has a reasonable expectation of privacy. That is a starting point, not a presumption or legal rule. The court must conduct a fact-sensitive balancing exercise between privacy and freedom of expression, considering the public interest in publication and the likely consequences of identification.

The claimant, a high-profile individual under active police investigation following allegations of serious sexual offences, sought an interim injunction preventing the BBC from publishing a report identifying him. He had been arrested in relation to some allegations and interviewed under caution in relation to another, but had not been charged. The BBC intended to use his case to illustrate wider concerns about the treatment of sexual-misconduct allegations in his professional sector.

The application relied on misuse of private information, contempt of court and interference with the claimant’s Article 6 rights. The central issues were whether publication would create a substantial risk of serious impediment or prejudice to active criminal proceedings and whether identification would be an unjustified invasion of privacy.

1. Contempt of court. The court granted the application. The proposed publication would identify the claimant as the subject of active criminal proceedings and would disclose allegations of serious sexual offending. Applying section 2(2) of the Contempt of Court Act 1981, the court was sure that publication would create a substantial risk that the course of justice would be seriously impeded or prejudiced.
2. The risk was substantial and manifest because the claimant’s identification by a national broadcaster would generate exceptional publicity. That publicity could influence complainants and future witnesses, discourage defence witnesses, create a bandwagon or copycat effect, expose future complainants to credibility challenges, and place potentially inadmissible bad-character material into the public domain. The risks could not adequately be controlled by jury management or other later safeguards.
3. The court emphasised that the statutory protection concerns the public’s and complainants’ entitlement to fair criminal justice as well as the suspect’s procedural rights. The criminal standard of proof applied to the prospective contempt application. The court therefore did not need separately to determine the claimant’s Article 6 argument, although it expressed doubts about the broader submission that In re G had altered that approach.
4. Privacy. In the alternative, the claimant was likely to establish at trial that publication would misuse private information. The court adopted the starting point in ZXC v Bloomberg LP that a person under criminal investigation before charge ordinarily has a reasonable expectation of privacy. That starting point applies even where journalistic investigations proceed independently of the police investigation and does not depend on confidentiality.
5. Applying the two-stage test in Campbell v Mirror Group Newspapers Ltd, the claimant had a reasonable expectation of privacy in allegations concerning his sexual and intimate life and in the fact of his investigation. The public interest in the BBC’s wider story did not outweigh the powerful public interest in preserving the fairness of criminal proceedings. The injunction restrained publication identifying or enabling identification of the claimant. The BBC could publish the report without identifying him or await charging decisions.