Do suspects have a right to privacy?

Saunders Law has a history of acting in high profile criminal and human rights cases, and we act for those whose alleged, but unproven criminal conduct is of interest to the press and public.

Whether correcting false descriptions of infamy about allegedly criminal heavyweights, preserving the reputations of those of good character, or taking necessary measures to avoid the closer scrutiny of alleged misconduct, Saunders Law is adept at protecting and preserving reputations during criminal investigations and proceedings.

We robustly assert our clients’ rights to privacy which were bolstered by the recent decision of the Supreme Court in Bloomberg LP v ZXC [2022].

The central issue in the Bloomberg case was whether ‘in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation’.

In reaching its judgment, the Supreme Court reviewed the well-established two-stage test, balancing the question of whether a suspect had a reasonable expectation of privacy under Article 8 of the Human Rights Act, as against the rights of a publisher to freedom of expression and information under Article 10.

Broadly, the judgment directs a fact specific approach, highlighting factors for consideration including

• the attributes of the suspect;
• the nature of the activity in which the suspect was engaged;
• the place at which it was happening;
• the nature and purpose of the intrusion;
• the absence of consent and whether it was known or could be inferred;
• the effect on the suspect; and
• the circumstances in which and the purposes for which the information came into the hands of the publisher.

The judgment is being widely interpreted as supportive of a suspect’s general right to privacy on the basis that ‘as a legitimate starting point’, a person under criminal investigation does have, prior to being charged, a reasonable expectation of privacy of information relating to the investigation.

At Saunders, we are mindful of the damaging impact false allegations of misconduct can have on the lives of those falsely accused, and on behalf of our clients we are encouraged by the ruling of the Supreme Court which police and publishers are to be reminded of during the investigation stages of any case, to reduce unfair reputational damage and that which undermines the presumption of innocence.