Confidentiality: investigation, but no charge…
One of the more uncertain areas of the law must be for those who are investigated by police or other agencies (see eg ZXC below) but not – yet, perhaps – charged with any offence. It is uncertain for the individuals concerned, for the journalist and other publisher (eg on social media) who may find out about it, and for any lawyer asked to advise. Can the fact of enquiries be reported by the media?
Broadly – and ‘broadly’ is the best that can be said – if a person is not charged, publicity will be banned. Once a charge is made open justice principles apply. If it is child care proceedings which are in issue, privacy continues once proceedings start; but if, on the same facts, a parent is prosecuted probably their name (but not that of the child) will be in the open.
Two very different aspects of confidentiality have been in the reports in the past three months: one (ZXC v Bloomberg LP  EWCA Civ 611 (15 May 2020)) was an unsuccessful appeal from Nicklin J and the other and earlier a decision by Nicol J in Pharmagona Ltd v Taheri anor  EWHC 312 (QB),  WLR(D) 129 (17 February 2020). In Pharmagona a husband and wife were made subject to injunction not to publish or otherwise pass on information from their former employers to others, save if they were asked by enforcement agencies. It is the second – ZXC – with which this post is concerned.
‘Confidentiality’: towards a definition
But first, what is ‘confidentiality’ as a legal principle? In the 1980’s ‘Spycatcher’ case (Att Gen v Guardian Newspapers Ltd (No 2)  UKHL 6,  1 AC 109 at 280 concerning release of government information received in the course of employment) Lord Goff said of confidentiality:
‘I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others…. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.’
The definition which – despite Lord Goff’s modesty, has been accepted as authoritative by text-book writers since – captures the three main components of ‘confidentiality’:
- That information comes to the knowledge of the confidant, who knows it is confidential (or should know it is confidential – as in ZXC);
- The situation is such that, where necessary, the confidant can be prevented from passing on confidences;
- There is a public interest in confidences being protected (if need be).
Expectation of privacy during a criminal investigation
In ZXC the question was: ‘ to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities.’ The parties to the appeal agreed that if someone is charged with an offence, there can be no expectation of privacy.
JXC was a senior employee of X Ltd a company which was the subject of a request for information from a UK ‘Legal Enforcement Body’ (UKLEB) in relation to X Ltd’s dealing with ‘a foreign state’. No one had been charged. UKLEB sent a long letter of request to the appropriate authority in the foreign state. The ‘confidential nature could not have been made clearer’ said Simon LJ (at ). The letter came into possession of a journalist for the defendant, who published it and the name of JXC. Nicol J said he had found it a ‘striking feature’ of the case that there seems to have been no appreciation in Bloomberg of the ‘highly confidential nature of the’ letter of request (at ).
Resolution of this case depends on the court assessing the facts in two stages:
‘ … Stage one of the enquiry is whether a claimant has a reasonable expectation of privacy in the relevant information? If the answer is yes, stage two involves an enquiry and evaluation as to whether that expectation is outweighed by a countervailing interest, in the present case Bloomberg’s right to freedom of expression under article 10.’
Thus – based on the House of Lords decision in Campbell v MGN Ltd  UKHL 22,  2 AC 457 – does the applicant start with a ‘reasonable expectation of privacy’ (eg balanced against the applicant’s own courting of publicity or the applicant’s own behaviour. If they do, the court must balance privacy against freedom of expression. Is the public interest in confidentiality outweighed by the public interest in freedom of expression?
The court held, as did Nicol J, that JXC had a reasonable expectation of privacy; but did that survive where he was under investigation by the police or otherwise. What JXC shows is that the law prefers that confidentiality be retained, but that there are no hard lines where an adviser or the court can be categoric. There are two important decisions in recent years, which – superficially at least – conflict: Khuja v Times Newspapers Ltd  UKSC 49 (19 July 2017),  3 WLR 351 and Richard v The British Broadcasting Corporation (BBC) & South Yorks Police  EWHC 1837 (Ch) (18 July 2018), Mann J. Both are considered by Simon LJ.
In Khuja Mr Khuja was indicated by one witness as involved in a sex abuse inquiry; but he was not charged in the subsequent criminal proceedings. A seven justice Supreme Court (with Lords Wilson and Kerr in the minority) held that his name was correctly publicised. In Richard the BBC publicised the fact of a sex abuse inquiry concerning Cliff Richard, which resulted in no charges. Sir Cliff recovered damages against the BBC. Both cases are cited in JXC; but the minority’s judgment in Khuja is what the Simon LJ centres his definition of the modern law upon.
Confidentiality: public interests balanced between privacy and freedom of expression
Thus, for Simon LJ his resolution of this case can be found in summary, that if a person has not been charged (JXC had not even been arrested), publicity will generally be forbidden:
‘ … I would take the opportunity to make clear that those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.’
In a short judgment Underhill LJ stressed that the confidentiality of the letter of request as between UKLEB and the foreign state may be one thing. JXC’s privacy may be a separate matter. He was a little more luke-warm than Simon LJ. He could see no basis for differing from Nicol J’s decision.
Confidentiality is critical to many aspects of privacy and in particular to many professional relationships. Privacy is not absolute (save in the case of the confidentiality in legal professional privilege); but it provides an important protection in many cases where it is to be balanced against the important public interest in freedom of expression.
19 May 2020