Cliff-Edge Moment For Privacy Rights And Criminal Investigations

Author:Mr Gregory Glynn, Joanelle O'Cleirigh and Eamonn Cunningham
Profession:Arthur Cox
 
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Does a suspect in a criminal investigation have a reasonable expectation of privacy? Or does the fact that they are under investigation mean they forfeit all privacy rights?

These issues were recently considered by the High Court of England and Wales in a case brought by pop singer, Sir Cliff Richard against the BBC.

The Court clarified that, as a general principle, an individual who is the subject of a criminal investigation has a legitimate expectation of privacy in relation to the fact of the investigation. However, this expectation may be displaced in certain circumstances. The judgment of the English High Court is not binding on the Irish courts, but may be persuasive should a similar issue arise here.

THE CLIFF RICHARD CASE

In 2014, Sir Cliff Richard became the subject of a criminal investigation. A BBC reporter found out about the investigation from a confidential source and arranged for the police to give him advance notice of an intended search of Sir Cliff's home. The BBC broadcast live footage of the search and reported on it extensively, with reporters on the ground and a helicopter overhead. A reporting team was also dispatched to cover Sir Cliff's properties in Portugal (where he was at the time) and Barbados.

Following the search, the police issued a statement, but did not name the suspect. The BBC, however, identified the suspect as Sir Cliff.

No charges were ultimately brought against Sir Cliff.

Sir Cliff sued the BBC and the police for breach of his privacy rights. The English High Court found that the BBC had infringed his privacy rights, awarding him £210,000 in general damages, in addition to special damages. His case against the police was settled.

POLICE INVESTIGATION - A REASONABLE EXPECTATION OF PRIVACY?

The Court found that the question of whether there is a reasonable expectation of privacy in a police investigation is fact-sensitive and is not capable of a universal answer. However, the starting point must be that a suspect has a reasonable expectation of privacy. This expectation may be displaced in particular circumstances, e.g. where there is an immediate risk to the public.

SEARCH OF PROPERTY - A REASONABLE EXPECTATION OF PRIVACY?

The Court found that Sir Cliff also had a legitimate expectation of privacy in relation to the search. While the circumstances of the execution of a search warrant may, as a matter of practice, compromise the privacy of an investigation, this does not mean that privacy rights should...

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