Privacy Rights in Relation to Criminal Investigations -

It is sometimes said that amongst the most contentious developments with regards the development of privacy law in the UK in recent times concern the protections afforded to those who are, or who have been in the past, the subject of a criminal investigation.

Such cases raise interesting and nuanced questions as to the appropriate balance between the need for effective law enforcement and public safety with the protection of individual freedoms.

Legal Framework

Privacy interests in the UK are primarily protected by the tort of misuse of private information, particularly with regards the unauthorised access to or dissemination of private information by a third party,which is rooted in the protection of human autonomy and dignity and the right to esteem and respect from others. With its origins in the law of confidence, the tortis now recognised as a distinct cause of action.

In considering a claim for misuse of private information, the courts adopt a two-stage test. First, they will consider whether the claimant can establish a reasonable expectation of privacy in the information concerned. This is a fact-specific exercise and takes into account factors such as the nature of the information, the attributes of the claimant, the circumstances of the intrusion, and the impact on the claimant. Provided the claimant can establish a reasonable expectation of privacy, the court will secondly go on to undertake a balancing exercise between the claimant’s right to privacy under Article 8 of the European Convention on Human Rights (ECHR) and the competing rights of the defendant, such as freedom of expression under Article 10 of the ECHR.

Application to Ongoing/ Recent Criminal Investigations

As a general starting point, 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 investigationeven prior to charge. This will generally remain the case where the investigation concludes in a caution or warning.

Such a starting point, however, only generally applies 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. It may also be displaced due to 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.

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, 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.