Will 'Cliff's Law' really enhance privacy rights?

Recent reports suggest that the drone sighting at Gatwick Airport before Christmas which led to over 1,000 delayed flights was caused by an unnamed employee or former employee of Gatwick Airport. The culprit has not yet been named by the papers and, on past form, may never be identified.

However, the same cannot be said for Paul Gait and Elaine Kirk who were initially arrested in relation to the drone sightings but were released without charge after 36 hours in custody. Their release was not before their names, photos and other personal information had become the subject of prurient media attention after a Mail on Sunday headline asked “Are these the morons who ruined Christmas?”

Mr Gait has spoken out about the effect of the public identification of him – including being signed off work and being house bound for two weeks. It remains to be seen if the couple are taking legal proceedings and pressing a case for damages.

The interesting question for lawyers is whether Mr Gait and Ms Kirk’s experience would have been avoided under Cliff’s Law, the private member’s bill formally known as the Anonymity (Arrested Persons) Bill which is being sponsored by Anna Soubry MP and which currently awaits its Second Reading in the House (if indeed this bill actually flies). 

Cliff’s Law, arising after the so-called landmark Cliff Richard privacy case last summer, would make it a criminal offence to name suspects before charge unless it is in the interests of justice. Soubry does not propose a blanket ban on reporting and accepts there will be exceptional cases, which are set out in detail within the draft bill. 

Interests of justice

However, Cliff’s Law is not without its critics. In July 2018, the prime minister seemingly disagreed with the bill, suggesting that reporting is a matter of careful judgement on the part of the police and the media and that, on some occasions, naming the individual encourages other victims to come forward. Some have also raised doubts about whether the law could work in the fast-paced world of social media.

The BBC, who initially sought leave to appeal the Cliff Richard judgment but ultimately decided against challenging Mr Justice Mann’s decision, called on the government to review the law in this important area to “protect the right to properly and fairly report criminal investigations, and to name the person under investigation.” There is, it said, “a fundamental principle of press freedom at stake here and one upon which we believe Parliament, as our lawmakers, should decide.”

At the time of the conclusion of the Cliff Richard case the judgment was described by some as a chilling blow to press freedom and a precedent-setting case when it comes to press reporting of a police investigation. Yet this does not appear to have been borne out in practice and from his comments this was apparently not Mr Justice Mann’s intention.

He referred in his decision to the College Of Policing Guidelines. These guidelines set out that the police will not name those arrested, or suspected of a crime, save in exceptional circumstances where there is a legitimate policing purpose. 

Mr Justice Mann was clear that an individual who is under investigation by the police, but before an arrest, has a reasonable expectation of privacy regarding the facts of the investigation. However he conceded that this is not a blanket ban and such a right can be outweighed by the right of the press to report on matters which are in the public interest. Effectively then Mr Justice Mann also said that decisions should continue to be made on a case by case basis.

The IPSO Editors' Code of Practice, which is subscribed to by most mainstream newspapers, includes a list of matters which would be ‘in the public interest’, one of which is detecting or exposing crime, or the threat of crime, or serious impropriety. The code prohibits the press from publishing inaccurate, misleading or distorted information but it does not mean that they cannot publish allegations. It also affords extra protection to children or victims of sexual assault. 

Where are we now

Aside from the drone couple, we have seen other examples of the press reporting freely on police investigations. In November 2018 the public learned that Lord Lester had been accused of sexual harassment while a police investigation was still on-going, and allegations of sexual harassment made against TV chef Dan Doherty were also widely reported at the end of January while an investigation into his conduct was on-going. 

There is no doubt that becoming the subject of a police investigation is extremely stressful and the added spotlight of media and public scrutiny only adds to that stress. However how the proposed Cliff’s Law will develop remains to be seen and in the meantime, it is questionable quite how far the Cliff Richard privacy judgment has really changed how the press report allegations.

----------------------------------------------------------------------

Gerard Cukier is a partner in the Reputation Management team and Rebecca Ryan a trainee at Kingsley Napley LLP 

----------------------------------------------------------------------