Privacy: Cliff Richard, bloggers and family courts transparency

20170722_161644Privacy: where now?

 

In Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) Mann J examined the balance of an individual’s privacy, as against the freedom of the media to publicise information which it acquires about that individual. It is another step along the way to affirm the existence of a tort of breach of privacy. And, yes, it was a case in tort; but it has resonance for the family lawyer especially in the context of transparency in family courts and the reporting of family proceedings.

 

Judgment in Richard was on 18 July 2018. A month later it was announced that there was to be a pilot scheme to permit legal bloggers into family courts.  The Transparency Project on 22 August explained this:

 

After months of liaison with the Family Procedure Rules Committee our proposal to permit legal bloggers into family court hearings is going to be piloted. The pilot will launch on 1 October and run for 9 months until 30 June 2019, so it’s no change until October. The pilot will allow practising lawyers, academic lawyers and those under the umbrella of an educational charity (like us) (sic: there was no statement of what was to be allowed)….

 

What is the connection between the case and the pilot scheme proposal? Both concern privacy: the first explains the expectation of privacy which a person enjoys, as against the right – if that privacy is not wrongly (ie tortiously) invaded – of the press to publish information. The second deals with the extent to which interested persons, other than the press, may attend private court hearings and (subject to the restrictions on publication of information about children proceedings: Administration of Justice Act 1960 s 12(1)(a)) to report upon those proceedings (Family Procedure Rules 2010 (FPR 2010) r 27.11(2)).

 

It always was the case that ‘any other person whom the court permits to be present’ (OPs) in proceedings heard in private (ie most family proceedings) could attend court (FPR 2010 r 27.11(2)(g)).. There is a proposed PD36J: Pilot Scheme – Transparency (Attendance at hearings in private); though it has yet to be signed off by the President of the Family Division. It says that the purpose of the new scheme is –

 

…to assess the use of new practices and procedures to allow for attendance at hearings in private by certain lawyers with a view to their being able to report on proceedings (as “legal bloggers”) in addition to duly accredited representatives of news gathering and reporting organisations.

 

A (ff) category is added to those attending private hearings, consisting of ‘duly authorised lawyers’. Each component of this is exhaustively defined. It is not clear what this pilot adds, for those who want to attend court, to what was available for the much wider category of OPs under para (g); and which is there already.

 

A question which remains to be resolved, is to what extent will the court release to OPs and media representatives (r 27.11(2)(f) (MR)) those attending sufficient documents (witness statements, skeleton arguments and other hearings documents: see further Release of family courts hearing documents, ICLR, 11 November 2016) to enable the OP/MR to make sense of proceedings (see eg R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343). The question has recently been further considered, though not in the context of r 27.11, in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795  (powers of the court under the CPR and its inherent jurisdiction to permit access to documents by non-parties). That case extends the debate but does not answer the difficulties of the OP or MR who wants to understand what is happening in the case.

 

Richard v BBC

 

In the Richard case, unknown to himself, Sir Cliff Richard (CR), the claimant, had become subject to investigation by South Yorkshire Police (SYP) for alleged child abuse. A BBC reporter found out about it. SYP promised him advanced notice of their intended search. When it took place in August 2014 the BBC immediately gave extensive television coverage to it. CR remained under investigation until June 2016 when it was announced there would be no charges.

 

CR claimed that both BBC and SYP violated his rights both in privacy and under the Data Protection Act 1998 (DPA 1998). (Mann J specifically held (at [226]) that the DPA 1998 claim added nothing to the privacy claim. It could be ignored.) He claimed substantial damages because his life and finances have been radically affected by what happened. In May 2017 he reached a settlement with SYP. BBC continued to resist the claim. It came before Mann J in April 2018. Judgment is dated 18 July 2018. BBC was found liable to CR in damages (£230,000) with special damages to be assessed.

 

Mann J defined the privacy issues he must resolve [225] as follows:

 

  • Did CR have a legitimate expectation of privacy in relation to the investigation and the search of his property?
  • If yes, was BBC justified in publishing information to the investigation by virtue of its rights of freedom of expression?
  • If he had rights of privacy, was there an infringement of them by either or both defendants, and (if so) what damages follow (this third component need not be considered here)?

 

Privacy and the law

 

Privacy in law is not an easy subject, where the common law – largely framed by European Convention 1950 jurisprudence – is still feeling its way. Richard may prove to be an important step in its development; though many decisions are fact specific and therefore stand alone. Five of the recent Supreme Court decisions on privacy are:

 

  • Rhodes v OPO [2015] UKSC 32, sub nom O (A Child) v Rhodes [2016] AC 219: the concert pianist James Rhodes wanted to publish an autobiography which described graphically what he had suffered as a child. The American mother of Rhodes’s 12 year old son thought what was said, if read by the child, might damage him psychologically. The Supreme Court allowed publication: if what was said was true, was not defamatory and not intended deliberately to injure. Freedom to publish was given a high premium by the law (see [77]). Appeal allowed by all five SCJJ.

 

  • Re JR38 [2015] UKSC 42, [2016] AC 1131: the applicant for judicial review was a 14 year old who had been involved in ‘interface violence’ in Northern Ireland. The police wanted to expose his name. Does the fact that he was a child make any difference to his expectation of privacy? The majority held this was an objective test. Child hood is irrelevant. Art 8 was not engaged. Appeal allowed on a majority, 3:2 SCJJ.

 

  • R (C) v Secretary of State for Justice [2016] UKSC 2, [2016] 1 WLR 444: protection of anonymity of mental patient (all five SCJJ agreed).

 

  • PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251, [2016] 2 WLR 1253 – three-way sex interim injunction. Privacy allowed to PJS (and for the sake of his children) by four SCJJ over dissent of Lord Toulson.

 

  • Khuja v Times Newspapers Ltd [2017] UKSC 49, [2017] 3 WLR 351 – publicity allowed for name of a police suspect (child sex grooming in Oxford area) who was not ultimately charged of the offences investigated. Appeal dismissed on a majority, 3:2 SCJJ.

 

Of the five appellants two secured privacy. C, a mental patient kept his anonymity. PJS, at an interim stage, succeeded also (and his children were an important factor: see Lady Hale at [72]). Of the other three, all either were permitted publicity (James Rhodes, in that case freedom of expression for an individual) or had anonymity denied. Publicity ruled the outcome in each of these three cases. Why did the publicity question go the other way in Richard?

 

Reasonable expectation of privacy

 

Mann J defined the first issue he must deal with as CR’s ‘legitimate expectation of privacy’. This starts from European Convention 1950 Art 8 (right to respect for private life) balanced against Art 10 (freedom of expression): respectively of CR and of BBC. Balancing the rights, where a conflict arises, he said (at [230]), involves the following:

 

  • Were CR’s Art 8 rights engaged?
  • How were such rights, if engaged, to be balanced against the Art 10 rights of the BBC?
  • Was there a public interest in publishing the information that was published?

 

Of Art 8 rights Mann J said there is a no ‘invariable right to privacy’ ([251]); but, that said, the starting point is that a suspect has a reasonable expectation of privacy in relation to a police investigation (at [248]). This question turns on the extent to which, first, people generally understand, and give effect to, the presumption of innocence; and, secondly, that everyone is ‘capable of adopting a completely open- and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards’. This is rarely the case with most lay people.

 

This took Mann J to Khuja (above). Lord Sumption gave judgment for the majority. He explained that he was not sanguine as to the ability of the public to distinguish suspicion from guilt. He went the other way on the decision to publicise Mr Khuja’s name, largely on open justice principles. Mann J accepted the minority view (Lords Kerr and Wilson) where they quoted Cobb J in Rotherham MBC v M [2016] EWHC 2660 (Fam), [2016] 4 WLR 177 (at [39]; [52] in Khuja): that despite the presumption of innocence, where there are false allegations of serious crime investigation “mud sticks”. The fact of a person being a public figure, like CR, made no difference to their entitlement to an expectation of privacy ([256]; and see eg K v News Group Newspapers Ltd [2011] EWCA Civ 439, [2011] 1 WLR 1827 per Ward LJ at [10]; Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, [2008] 2 FLR 599, [2009] Ch 481 per Brooke LJ at [36]).

 

Nor was the position altered by the nature of who received the information. If information starts out as private it remains so, ‘full stop’:

 

[258] … Sir Cliff’s rights in respect of the information in the hands of the police are not based on a reasonable expectation of privacy as long as the information does not fall into the hands of the media; he has a reasonable expectation of privacy full stop…

 

Art 8 was engaged as against both defendants. But how did BBC’s Art 10 rights balance against CR’s privacy? What of the effect of Human Rights Act 1998 s 12(4) and BBC public interest defence? How did each set of rights weigh one against the other? In assessment of the balance Mann J drew attention to the ‘ultimate balancing test’, defined by Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 at [17]. No right has priority.

 

Public interest

 

Human Rights Act 1998 s 12(4) requires the court to take into account the public interest in publication of material. He considered this in the light of the factors set out in Axel Springer AG v Germany (2012) 55 EHRR 6, [2012] EMLR 15 (see especially [276]). Assessment of the public interest and its part in drawing the balance depended on the ‘good faith’ of the journalist and on the media providing ‘reliable and precise information’ ([288]).

 

The way BBC came by information about, and then reported, the investigation weighed against them. The public interest in knowing about investigations into sexual abuse did no help them in this case ([317]-[318]).

 

Finally, in defining how the balance fell, Mann J concluded that CR’s privacy rights outweighed BBC’s rights to freedom of expression ([315]); and the first point he identified was the ‘mud sticks’ point (so important, though not determinative, in the Khuja case (see above)). Damages have been partly defined. Special damages, and the extent to which the BBC and SYP may respectively be required to contribute to the damages awards, remain to be determined.

 

Privacy: lawyer bloggers and the family courts

 

On one level the case does no more than confirm that there is an expectation of privacy; and that where that expectation is disregarded by anyone exercising their competing freedom of expression, then damages may follow. That is relatively well-settled law (see eg Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457).

 

What Richards does is to pose the question for the press and for anyone else publicising information – such as family law bloggers, mentioned above – where an expectation of privacy arises: how far does freedom to publish (for individuals and for the media) protect the publisher from a damages claim where privacy is overridden (eg because a child’s name can be identified even though a case is reported with parties anonymised). And for the media, how far does the public interest defence (HRA 1998 s 12(4)) protect them from such a claim?

 

To what extent – just a thought… – should those who publish information (say) from a family court, insure against a claim from a parent, or a child? The privacy of the parent or child may be overridden by unwarranted publicity (eg in law reports or a blog)? Each has an expectation of privacy; and the private or lay observer, the academic or blogger does not have the public interest protection of HRA 1998 s 12(4). Does this leave each or all of them vulnerable to a claim in tort if they in any way infringe the expectation of privacy of the subject matter of what they publish?

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President Trump and his lawyer, Mr Cohen: and advice privilege and the ‘iniquity exemption’

Advice privilege and Mr Trump’s hush money

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This morning the Guardian reported of President Trump’s lawyer:

 

‘Michael Cohen, his long-time lawyer and “fixer”, pleaded guilty to eight charges including campaign finance violations and directly implicated Trump in paying “hush money” to women with whom he allegedly had affairs.’

 

But where does that leave the long-standing rule: that what a person tells his or her lawyer is covered by secrecy (ie legal professional privilege (LPP), and its principal branch, legal advice privilege (LAP))?

 

In what follows I shall assume that paying ‘hush money’ in this context amounts to a crime; and that the law of privilege – based as it is on the common law (see eg R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185) – is broadly the same in the US as in English law (on which the following summary is based).

 

The ‘iniquity exemption’

 

The question of whether LAP applies where the purpose of discussions with the lawyer are to further a crime, or to join with the lawyer in jointly furthering a crime, date back at least to the later nineteenth centrury. In R v Cox and Railton (1884) 14 QBD 153 Court of Criminal Requests considered a case where partners consulted a solicitor for him to date a deed in such a way as to avoid property owned by one of them being subject to enforcement. The head-note summarises the position: ‘Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure.’ Stephens J explained this at 170-171, on grounds that a fraudulent purpose prevents LAP even existing:

 

‘The principle on which we proceed is this: that where anything is done, any communication made from a client to an attorney, with reference to a [171] fraudulent purpose, the privilege does not exist; the fraudulent character of the communication takes away the privilege.’

 

The issue arose a couple of years ago when the ‘Panama papers’ were leaked to the press. The question remains with those papers: to what extent are any of the leaked documents covered by LAP at all; or were they outside the scheme of privilege so that the press legitimately (and indeed formerly married parties’ lawyers) could publicise the material.

 

Public interest in confidentiality

 

There is a strong public interest in confidential information remaining private (Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (Spycatcher case)); and even more so in the case of confidential information also covered by LAP.

 

LAP applies to confidential information passed to a lawyer by a client or a potential court witness, to enable the lawyer to advise and to act for the client. It applies to the advice provided by the lawyer. LAP depends on there being a confidential relationship between a client and his or her lawyer. The right to privacy which results is the right of the client, not of the lawyer. The question in the Panama papers was: has the leaker of the information in any way permissibly breached the individual client’s confidentiality (whatever one may think of that individual’s tax affairs or other dealings)?

 

The justification for LPP is its importance to administration of justice: that an individual should have the right (ie not strictly a ‘privilege’) privately to ‘make a clean breast’ of a matter to a legal adviser (Anderson v Bank of British Columbia (1876) 2 ChD 644), as explained by Jessel MR at 649:

 

‘The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men… [That being so it is necessary that a client] should be able to make a clean breast of it to the gentleman whom he consults …; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.’

 

A history of LPP and a classic definition can be found in Lord Taylor CJ’s speech in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513. This case stressed the extent of the public interest in administration of justice: that a lawyer must be able to give his client an unqualified assurance that whatever the client tells him in confidence will never be disclosed without his consent; and that this assurance is absolute subject only to the qualifications referred to below.

 

‘Iniquity exemption’ and a justification for production in court

 

The question for a common law court remains: was Michael Cohen’s advice given to Mr Trump (as he then was), or documents created to further crime or fraud. If they were, then privilege will not assist the client. What then is President Trump’s position on this question in the case of any ‘hush money’ paid, and of any advice given to deal with those payments?

 

David Burrows

22 August 2018

Author of Privilege, Privacy and Confidentiality in Family Proceedings (in preparation, Bloomsbury Professional