Cliff Richard, Privacy and Protection for Defendants.

2nd August 2018 Business Crime

Recent reports have surfaced in the press following the judgement of Mr Justice Mann, confirming that Cliff Richard has been awarded significant damages following claims against the South Yorkshire Police (SYP) and the BBC in Privacy and under the Data Protection Act 1998. Extensive media focus was given to a search that took place at Richard's house whilst he was under investigation for historic child sex offences. Richard was neither arrested nor charged for any offence at any point during the investigation which ceased in 2016, but nonetheless was given negative press attention and undoubtedly suffered irreversible damage to his reputation as a result.

The BBC claimed that they had a right to report the proceedings under their right to freedom of expression, and freedom of the press. They were found to be liable for damages for their broadcast of the information nonetheless, the court having determined that Richard had a right to privacy in respect of the police investigation and that this right had been infringed by the BBC without legal justification.

Being investigated is a stressful process for any business or individual. Reporting about an individual involved in a criminal or regulatory investigation can destroy lives and businesses unnecessarily. Whilst many see this as a form of social justice, this in fact can be massively detrimental to justice actually being achieved.

In Cliff Richard's case, the trial process was concerned with a dispute of fact between SYP and the BBC as to how and why information regarding a search of Richard's property had been released. The BBC alleged that SYP had simply volunteered the information to the police of their own volition, the SYP alleged that they were 'manoeuvred' into providing it due to concerns and indeed implicit threat that the BBC might release the information about the search before they had conducted it.

Clearly release of that type of information to the public before a search is undertaken could destroy an investigation when it is still in its infancy tipping off a defendant as to a search. If no evidence of value is found, it could be alleged it was destroyed as a result of the tip off, rather than the other potentially more likely conclusion that it didn't exist in the first place. A defendant therefore who could otherwise have been exonerated as a result of a negative unannounced search is not exonerated. The investigators who could have recovered evidence implicating a defendant do not recover it. It is not hard to see therefore why anonymity of defendants and investigations into them can be of crucial importance to a fair justice process.

The law in this country provides that an individual is innocent until they are proven guilty. An investigation can start into any body, for anything. Simply because an investigation into an individual or organisation is ongoing, it does not follow that there has been any wrong doing. Indeed in many cases (and as can most frequently this can be seen increasingly in investigations in to sexual offences) the word of another alone can be enough to cause an investigation to begin and more importantly can be enough for an investigator to bring a prosecution. This is contrary to popular belief that a person cannot be prosecuted unless there is some 'evidence'. Sadly many fail to realise that a witness statement from another even if uncorroborated by other evidence is more than enough for a defendant to find themselves in court, facing proceedings. Extreme caution should therefore be exercised in reporting of ongoing investigations for which no conviction may ever be bought.

If you have any questions regarding the powers of police investigation or the reporting powers of the press contact JMW using the form or email myself directly.

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Catherine Gaynor is an Associate located in Manchester in our Business Crime & Regulation department

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