View source for UKSC (UK) - Bloomberg LP (Appellant) v ZXC (Respondent) (2022) UKSC 5

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|Court_With_Country=UKSC (UK) (United Kingdom)

|Case_Number_Name=Bloomberg LP (Appellant) v ZXC (Respondent) [2022] UKSC 5
|ECLI=

|Original_Source_Name_1=BAILII
|Original_Source_Link_1=https://www.bailii.org/uk/cases/UKSC/2022/5.pdf
|Original_Source_Language_1=English
|Original_Source_Language__Code_1=EN

|Date_Decided=16.02.2022
|Date_Published=16.02.2022
|Year=2022



|National_Law_Name_1=Article 8 ECHR
|National_Law_Link_1=https://www.echr.coe.int/Pages/home.aspx?p=basictexts/convention

|Party_Name_1=Bloomberg LP
|Party_Link_1=
|Party_Name_2=ZXC
|Party_Link_2=
|Party_Name_3=
|Party_Link_3=
|Party_Name_4=
|Party_Link_4=
|Party_Name_5=
|Party_Link_5=

|Appeal_From_Body=EWCA (CA)
|Appeal_From_Case_Number_Name=ZXC v Bloomberg LP [2020] EWCA Civ 611
|Appeal_From_Status=
|Appeal_From_Link=https://www.bailii.org/ew/cases/EWCA/Civ/2020/611.pdf
|Appeal_To_Body=
|Appeal_To_Case_Number_Name=
|Appeal_To_Status=Not appealed
|Appeal_To_Link=

|Initial_Contributor=Florian Wuttke
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A media organisation published information about criminal investigations against a data subject. The Supreme Court held that a person has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation under Article 8 ECHR.

== English Summary ==

=== Facts ===
The data subject (respondent) worked for a publicly listed company. The appellant is an international media organisation who obtained a confidential Letter of Request (LoR) sent by a UK law enforcement body (UKLEB) to a foreign state seeking legal assistance in criminal investigations against the data subject on corruption and conspiracy. The LoR contained confidential information about the UKLEB’s state of investigation on whether the data subject defrauded a publicly listed company. The appellant intended to publish an article with sensitive information from the LoR about the data subject's work for the company, the status of the criminal investigation and who and what were the targets of the UKLEB investigation. Before the publication, the appellant contacted the UKLEB and the data subject’s solicitor to inform them about their intentions. The UKLEB expressed concerns that the publication could seriously harm the investigations and advised the appellant not to proceed with the publication. The appellant ignored the warnings, and the article was published in 2016.

Subsequently, the data subject was denied an interim injunction to prevent further publication on the grounds that the data subject’s right to privacy under Article 8 ECHR was outweighed by the appellant’s right to freedom of expression under Article 10 ECHR. The trial court later established that the factual basis for this decision was wrong, and the injunction should have been granted.

At trial, the data subject claimed to have a reasonable expectation of privacy in information published in the Article and that the media organisation misused their private information by publishing the article. Applying the two-stage test summarised by ''Buxton LJ in McKennitt v Ash'' [2008] QB 73 (CA) to determine whether (1) the data subject has a reasonable expectation of privacy and (2) that expectation is outweighed by public interest, the trial court found that “there was a very clear public interest that the contents of the LoR should not be published and that the confidentiality of UKLEB’s investigations should be maintained” [29]. The trial court held that the data subject’s right under Article 8 ECHR prevailed, awarded damages for misuse of private information and granted an injunction preventing the media organisation from further publishing the article. 

The media organisation appealed to the Court of Appeal (CoA) and later to the Supreme Court on the grounds that the CoA ignored well-established defamation law, incorrectly considered the effect of reputational damage and overstated the negative impact of publication on an individual’s reputation “given the public’s ability to observe the presumption of innocence.” [74]

The Supreme Court had to decide, inter alia, whether a person under criminal investigation has, prior to being charged, according to stage one of the two-stage test a reasonable expectation of privacy in respect of information relating to that investigation. [63]

=== Holding ===
The Supreme Court dismissed the appeal and confirmed the CoA’s decision that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

'''On the general rule and legitimate starting point'''

As to the starting point, the Supreme Court noted that a person has no “invariable or unqualified right to privacy during an investigation” [68] and needs to set out and prove “the circumstances establishing that there was objectively a reasonable expectation of privacy.” [69] However, the publication of information relating to criminal investigations “ordinarily causes damage to the person’s reputation together with harm to multiple aspects of the person's physical and social identity” [71] Thus, when a person is under criminal investigation, courts are advised to “start with the proposition that there will be a reasonable expectation of privacy in respect of such information” [70] and must then consider whether the presumption can be upheld in the individual case.

'''On the negative effects on an individual’s reputation'''

On the basis that information about criminal investigations against a suspect cause reputational damage, the Supreme Court identified a consistent course of dealings regarding the protection of a suspect’s privacy. However, once a suspect is charged, the identification of the individual is in the interest of open justice and there can be no reasonable expectation of privacy thereafter. The Supreme Court held that, as a matter of public policy, the identity of suspects should not be revealed prior to the point of charge. The Supreme Court presented extensive legal authority showing that a corresponding uniform general practice has been established by the courts and UKLEB: the list refers, inter alia, to the Leveson Inquiry Report, ''Attorney General v MGN Ltd'' [2011] EWHC 2074 (Admin); [2012] 1 WLR 2408 [82], the “Guidance on Relationships with the Media” of the College of Policing [83], recommendations of the Independent Office for Police Conduct [85], the Commissioner of the Metropolitan Police, the Crown Prosecution Service [86], and confirming ''ERY v Associated Newspapers Ltd'' [2016] EWHC 2760 (QB); [2017] EMLR 9 and ''Richard v British Broadcasting Corpn'' [2018] EWHC 1837 (Ch); [2019] Ch 169 whereas suspects have a reasonable expectation of privacy in relation to police investigations. [94f]

'''On the presumption of innocence''' 

The Supreme Court points out that the presumption of innocence is a legal concept. In contrast, ''Khuja v Times Newspapers Ltd'' [2017] UKSC 49; [2019] AC 161 established “that the public’s understanding of the effect on a person of publication of information that they are under police suspicion of having committed a criminal offence is a question of fact (…).” [107] Hence, the question is how others will react to the publication. Here, the Supreme Court refers back to legal authority which confirmes “that the person’s reputation will ordinarily be adversely affected (…)” [108] and relativises the force of the social presumption of innocence. 

'''On the relevance of defamation law'''

The tort of misuse of private information must be distinguished from the tort of defamation. Unlike in defamation, the purpose of misuse of private information is not to protect against publication of untrue information, but “to protect an individual’s private life, whether the information is true or false” [111] The Supreme Court pointed out that the data subject had not sued for defamation but for misuse of private information and it would be inappropriate to “read across the concept of a hypothetical reader from the tort of defamation into the tort of misuse of private information” [112]

'''On the reputational damage'''

With reference to the ECtHR decisions ''Denisov v Ukraine'' (Application No 76639/11) and ''Pfeifer v Austria'' (Application No 12556/03) (2007) 48 EHRR 8, the Supreme Court confirmed that information about a person’s reputation [118] falls within the realm of “private life” under Article 8 ECHR. Reputational damage of a certain level of seriousness can “be taken into account in determining whether information is objectively subject to a reasonable expectation of privacy in the tort of misuse of private information.” The Supreme Court concluded that information “may be characterised as private because it is reputationally damaging provided it attains a certain level of seriousness and consequentially impacts on the personal enjoyment of the right to respect for private life.” [125]



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== English Machine Translation of the Decision ==
The decision below is a machine translation of the English original. Please refer to the English original for more details.

<pre>
The reporting restrictions made by the High Court and the Court of Appeal remain
in force.


                                                       Hilary Term
                                                      [2022] UKSC 5
                                      On appeal from: [2020] EWCA Civ 611


                         JUDGMENT


     Bloomberg LP (Appellant) v ZXC (Respondent)


                             before

                     Lord Reed, President
                        Lord Lloyd-Jones
                           Lord Sales

                         Lord Hamblen
                         Lord Stephens


                     JUDGMENTGIVEN ON

                       16 February 2022

         Heard on 30 November and 1 December 2021,                       Appellant
                   Antony White QC
                     Clara Hamer

(Instructed by Reynolds Porter Chamberlain LLP (London))


                      Respondent
                     Tim Owen QC
                    Sara Mansoori

                    Edward Craven
              (Instructed by David Byrne),LORD HAMBLEN AND LORD STEPHENS: (with whom Lord Reed, Lord Lloyd-Jones and


Lord Sales agree)



1.     Introduction




1.     The central issue on this appeal is 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.


2.     The appellant, Bloomberg LP (“Bloomberg”), is an international financial

software, data and media organisation headquartered in New York. Bloomberg News is
well-known for its financial journalism and reporting.


3.     The respondent, ZXC (“the claimant”), is a citizen of the United States but has

had indefinite leave to remain in the UK since 2014. He worked for a publicly listed
company which operated overseas in several foreign countries (“X Ltd”) and became
the chief executive of one of its regional divisions but was not a director.



4.     The claimant brought a claim for misuse of private information arising out of an
article (“the Article”) published by Bloomberg in 2016 relating to the activities of X Ltd

in a particular country for which the claimant’s division was responsible (the “foreign
state”). These activities had been the subject of a criminal investigation by a UK law
enforcement body (the “UKLEB”) since 2013. The information in the Article was almost

exclusively drawn from a confidential Letter of Request sent by the UKLEB to the
foreign state.


5.     The claimant claims that he had a reasonable expectation of privacy in

information published in the Article and in particular the details of the UKLEB
investigation into the claimant, its assessment of the evidence, the fact that it believed
that the claimant had committed specified criminal offences and its explanation of

how the evidence it sought would assist its investigation into that suspected offending.


6.     The claimant claimed that Bloomberg misused his private information by
publishing the Article and sought damages and injunctive relief. Following a four-day

trial before Nicklin J, the claims were upheld and damages of £25,000 awarded, as set
out in his open judgment of 17 April 2019 - [2019] EWHC 970 (QB); [2019] EMLR 20.

                                            Page 2,Bloomberg’s appeal was dismissed by the Court of Appeal (Underhill LJ, Vice President
of the Court of Appeal, Civil Division, and Bean and Simon LJJ) in its open judgment of

15 May 2020 - [2020] EWCA Civ 611; [2021] QB 28. Permission to appeal was granted
by a panel of the Supreme Court on 17 December 2020.


7.     The judgments below were given in an open form which was an edited version

of the private judgment also handed down. In the open judgment sections of the
private judgment were removed or edited to protect the claimant’s identity. We
propose to give an open judgment only. For the parties all further factual details are

sufficiently set out in the private judgments given by the courts below. Those details
are not necessary for the purpose of the decision on this appeal. References in this
judgment are to the judge’s and to the Court of Appeal’s open judgments.



2.     The factual background




8.     The integrity of various transactions involving X Ltd has been publicly
questioned, including by UK Parliamentarians, for a number of years, including its
transactions in the foreign state.



9.     Following the announcement of the UKLEB investigation in 2013, Bloomberg
and other media outlets have reported on the investigation, noting that the UKLEB was
focusing on allegations of fraud, bribery and corruption relating to the activities of the

company or its subsidiaries. The investigation remains ongoing, but the current
position is that none of the personnel employed by X Ltd has been charged with any
offence.



10.    In the autumn of 2016, Bloomberg published an article (the “autumn article”).
The autumn article explained that the claimant had been interviewed by the UKLEB as
part of its investigation. A Bloomberg journalist had contacted the claimant’s solicitor

prior to publication. The judge found that the solicitor was shocked that the journalist
had obtained this information and that the likely source for this information was
someone employed by the UKLEB. The solicitor considered that, as the information

that the claimant had been interviewed by the UKLEB was going to be published, the
claimant had little choice but to offer some comment for publication. The judge
described this as an understandable media strategy. The claimant, although highly

displeased at its publication, did not take any action over the autumn article and has
accepted that Bloomberg could continue to publish the information it contained.




                                           Page 3,       (i)    The Letter of Request (referred to in the judgments below as “LoR”)




11.    Also in the autumn of 2016, the UKLEB sent a 15-page Letter of Request,
accompanied by several enclosures, to the foreign state. A Letter of Request is the
usual means by which legal assistance is sought by one state from another in relation

to the investigation or prosecution of criminal offences in accordance with The United
Nations Convention against Corruption (“the Convention”), which was adopted in
October 2003.



12.    Under paragraph 15 of article 46 of the Convention, a request for mutual legal
assistance is required to include: (i) the subject matter and nature of the investigation

to which the request relates and the name and functions of the authority conducting
the investigation; (ii) a summary of the relevant facts; (iii) a description of the
assistance sought and details of any particular procedure that the requesting state
party wishes to be followed; (iv) where possible, the identity, location and nationality

of any person concerned; and (v) the purpose for which the evidence, information or
action is sought.



13.    Letters of Request are confidential documents as recognised and explained in
the 2015 Home Office guidance entitled Requests for Mutual Legal Assistance in
Criminal Matters: Guidelines for Authorities Outside of the United Kingdom , 12th ed

(“the Guidelines”). As stated in the Guidelines:


              “Confidentiality.



              It is usual policy for central or executing authorities to neither
              confirm nor deny the existence of an MLA request, nor
              disclose any of its content outside government departments,
              agencies, the courts or enforcement agencies in the UK

              without the consent of the requesting authority, except
              where disclosure is necessary to obtain the co-operation of
              the witness or other person concerned.



              Where public statements are made by an overseas authority
              about the assistance it is requesting from the UK, the central

              authority should be notified so that they may respond
              appropriately to any media or public enquiries.



                                            Page 4,              In general, requests are not shown or copied to any witness
              or other person, nor is any witness informed of the identity

              of any other witness. In the event that confidentiality
              requirements make execution of a request difficult or
              impossible, the central authority will consult the requesting

              authorities. In cases where disclosure of a request or part
              thereof is required by UK domestic law in order to execute
              the request, it will normally be the case that the requesting

              authority will be given the opportunity to withdraw the
              request before disclosure to third parties is made.”


14.    The confidentiality of Letters of Request was addressed in the Court of Appeal

decision in National Crime Agency v Abacha [2016] EWCA Civ 760; [2016] 1 WLR 4375,
which concerned a request for inspection of a Letter of Request under CPR Part 31.14.
After a review of the authorities, Gross LJ stated at para 48 as follows:



              “I accept that it is right to start from the position that letters
              of request such as the request are confidential. Both the
              Treaty and the Guidelines are clear in this regard. This court

              is of course anxious to assist the requests of friendly foreign
              countries for [mutual legal assistance], both as a matter of
              comity and on the very practical basis that it is only by

              furnishing such assistance that international crime and large-
              scale corruption can be combated. In many cases, there will
              be very good reasons for maintaining the confidentiality of

              such requests; examples are readily to hand - such as
              national security (when it arises), investigations at an early
              stage, a proper reluctance to disclose what lines of inquiry

              are being followed and which individuals are under
              suspicion.”


15.    The Letter of Request was headed “CONFIDENTIAL LETTER OF REQUEST” and

sought banking and business records in relation to X Ltd and a number of individuals,
one of whom was the claimant. It gave a general description of the nature of the
UKLEB’s investigation into X Ltd and stated: “The investigation is at an evidence

gathering stage. There have been interviews with some witnesses and suspects. There
have been no searches of properties linked to the suspects at this time. Nobody has
been charged with any offence.”



16.    It stated that the UKLEB’s investigation concerned possible offences of
corruption, bribery, offences under the Proceeds of Crime Act 2002, and various

                                            Page 5,offences under the Fraud Act 2006 together with conspiracy to commit certain
offences. It gave a summary of investigations up to that point and identified the three

transactions that were the specific targets of the request for assistance and explained
why that assistance was required. It contained a detailed assessment of the evidence
the UKLEB had so far obtained together with initial conclusions the UKLEB had reached

on what it believed was demonstrated by the evidence. In relation to the claimant this
included the following:


              “... We have obtained a number of documents from [X Ltd]

              which state [redacted]. However, the documents have used
              [incorrect information] and are thus false. [The UKLEB]
              believes that various suspects have committed fraud by false

              representation by dishonestly representing that [the
              property] was a valuable asset based on data for an entirely
              different asset. The UKLEB are investigating whether [the

              claimant] was part of a conspiracy to defraud [X Ltd].”


17.    It contained the following statement under the heading “Confidentiality”:



              “... In order not to prejudice the investigation, I request that
              no person (including any of the above named subjects) is
              notified by the competent authorities in your country of the

              existence and contents of this Letter of Request and any
              action taken in response to it. I further request that action is
              taken to ensure that any person from whom evidence is

              sought does not so notify any other person.


              The reason for requesting confidentiality is that it is feared
              that, if the above suspect [sic] or an associated party became

              aware of the existence of this request or of action taken in
              response to it, actions may be taken to frustrate our
              investigation by interference with documents or witnesses.



              If it is not possible to preserve the confidentiality in the
              above manner, please notify me prior to executing this Letter
              of Request.”







                                            Page 6,       (ii)   The Article




18.    The judge found that the Article contained information drawn almost
exclusively from the Letter of Request, a copy of which had been obtained by the
Bloomberg journalist. He further found that it had been given to the journalist “in what

must have been (and should have been recognised as) a serious breach of confidence
by the person who originally supplied it” (para 125).



19.    The private information which the claimant claims was misused as a result of
the publication of the Article (the “information”) is as follows: (i) the fact that the
UKLEB had asked the authorities of the foreign state to provide banking and business

records relating to four companies in its investigations into the claimant (and others)
and wanted the information about the claimant from the foreign government; and (ii)
the details of the deal that the UKLEB was investigating in relation to the claimant,
including that: (a) the UKLEB considered the claimant had provided false information

to the X Ltd board on the value of an asset in a potential conspiracy to which another
named officer of X Ltd may have been complicit; (b) the UKLEB believed that the
claimant had committed fraud by false representation by dishonestly representing that

[name] was a valuable asset based on data for an entirely different asset; and (c) the
UKLEB was seeking to trace the onward distribution of [a substantial sum of money]
paid into [a bank account] as it believed that these monies were the proceeds of a

crime carried out by the claimant.


20.    The judge made detailed findings about the events leading up to the publication

of the Article. Bloomberg contacted the UKLEB prior to publication and there was
correspondence between them. The UKLEB repeatedly expressed concerns about the
threatened publication and told Bloomberg it believed that “the publication of
material pertaining to a LoR will pose a material risk of prejudice to a criminal

investigation”. Bloomberg also contacted the claimant’s solicitor who expressed his
shock and surprise that Bloomberg was considering publishing information from a
confidential Letter of Request.



21.    The judge found that:


              “51.    It is a striking feature of this case … that in none of the

              pre-publication email communications is there any
              recognition of the highly confidential nature of the LoR or any
              record of whether (as claimed by [Bloomberg’s] witnesses

              called to give evidence at the trial) there was a careful (or

                                            Page 7,              indeed any) assessment of the potential consequences of
              breaching that confidentiality or any weighing-up of this

              against the perceived public interest in publication.


              …



              59.    On the evidence, I conclude that no-one at
              [Bloomberg] involved in publication of the Article was aware
              of just how sensitive the LoR was. There is no hint of this

              even being a consideration in any of the email traffic, and
              [the UKLEB’s employee’s] concerns about its publication
              failed to alert them to this important issue. It might be

              thought surprising that an international publisher of the
              standing of [Bloomberg] had failed to appreciate (or inform
              itself) of the status of a letter of request. [The journalist] is
              the only person, who gave evidence, who had actually read

              the confidentiality section in the LoR … although the LoR had
              been sent to the in-house lawyer ... In his evidence, [the
              Journalist] accepted that this was ‘a warning to the world, in

              effect, to anyone who gets hold of it … that they must not,
              effectively, leak this information because it will harm the
              [UKLEB] investigation’.



              60.    Equally, the evidence strongly suggests that the
              editorial process of [Bloomberg] simply failed to appreciate

              that the Article potentially engaged the privacy interests of
              the Claimant …”


22.    The day after the article was published, the UKLEB sent an email expressing its

consternation with the way in which the article was published as it said it would have
expected to have been given a reasonable opportunity to put across its concerns
before any publication.



23.    The claimant’s immediate response was to complain to the UKLEB and demand
that it carry out an inquiry into this apparent further leak.








                                           Page 8,3.     The proceedings below




       (i)     The application for an interim injunction




24.    The claimant sought an interim injunction restraining further publication of the
Article. The application was heard by Garnham J on 2 February 2017 and was refused
in a reserved judgment given on 23 February 2017 ([2017] EWHC 328 (QB); [2017]

EMLR 21). Garnham J held that he was satisfied that the claimant was likely to
establish at trial that he had a reasonable expectation of privacy in the information but
concluded, on the evidence before him, that it was likely that any infringement of the

claimant’s privacy rights under article 8 of the European Convention on Human Rights
(“ECHR”) would be held to be outweighed by Bloomberg’s right to freedom of
expression under article 10 of the ECHR.



25.    In the light of the evidence subsequently given at trial, Nicklin J found that there
had been two failures of candour by Bloomberg and that Garnham J had been (perhaps
unintentionally) misled as to material facts. He found that, first, the journalist’s

evidence contained a false statement that the UKLEB had not provided any comment
when contacted about the Article and this was not brought to the attention of the
court when Bloomberg’s then solicitors subsequently received the emails between the

UKLEB and Bloomberg (although the emails were later disclosed to the claimant).
Secondly, the journalist had withheld the fact that he had retained a copy of the Letter
of Request and it was not made available at the interim injunction hearing as it should

have been. It was found that if Garnham J had been provided with a copy of the Letter
of Request and the evidence of the UKLEB’s position, he would likely have granted the
injunction sought.



       (ii)    The judgment of Nicklin J



26.    It has at all times been common ground that liability for misuse of private

information is determined by applying a two-stage test. Stage one is whether the
claimant objectively has a reasonable expectation of privacy in the relevant
information. If so, stage two is whether that expectation is outweighed by the

publisher’s right to freedom of expression. This involves a balancing exercise between
the claimant’s article 8 right to privacy and the publisher’s article 10 right to freedom
of expression.



                                            Page 9,27.    In relation to stage one, the judge held, having regard to the authorities and
various public policy statements, that “it is now possible to say that, in general, a

person does have a reasonable expectation of privacy in a police investigation up to
the point of charge” (para 119). Having considered the various potentially relevant
circumstances identified in Murray v Express Newspapers plc [2008] EWCA Civ 446;

[2009] Ch 481, para 36, he concluded that the claimant had a reasonable expectation
of privacy in respect of the information (para 125).


28.    In relation to stage two, the judge found that the issue of corruption in the

foreign state and possible involvement in that corruption by X Ltd and its
employees/officers was a matter of “high public interest”. He also found, however,
that this public interest had only an “indirect” bearing in this case because “the Article

was not presenting the fruits of an investigation by [Bloomberg] into this alleged
corruption”; instead, “the Article reported some of the contents of the LoR, presented
with other background material to place the contents of the LoR in context for general

readers. The news value in the Article was the revelation of what and who were the
targets of the UKLEB investigation and the UKLEB’s suspicions based on evidence it had
gathered” (para 126).



29.    In these circumstances, the question the judge asked himself was whether there
was “sufficient public interest in revealing information about the UKLEB’s investigation
drawn from the LoR” to outweigh the reasonable expectation of privacy that he had

found the claimant had in the information (para 127). In answering this question, the
judge took as his “starting point … applying the clear principles” from the authorities
he identified that “there was a very clear public interest that the contents of the LoR

should not be published and that the confidentiality of UKLEB’s investigations should
be maintained” (emphasis in original) and found that the confidential nature of the
Letter of Request and the circumstances in which it came into Bloomberg’s possession

meant that Bloomberg was bound generally to observe the confidentiality of the Letter
of Request (para 129). The fact that this was not appreciated by Bloomberg, and that
the claimant had not pursued (and on Bloomberg’s case could not pursue) a claim for

breach of confidence, “does not alter this fundamental position” (para 129).


30.    The judge also found that the UKLEB’s investigation into X Ltd was itself a
matter of public interest, and that there was a clear public interest in the media

following and reporting on “developments” in the investigation. He noted, however,
that the Article had not made any “criticism” of the investigation (such as
“inadequacies in the investigation, undue delay or concern over the direction the

investigation was taking” or if “investigators had been subjected to improper political
pressure not to pursue certain people or lines of inquiry”) which the media could
legitimately be expected to highlight in its role as a “watchdog” (paras 128-130).


                                           Page 10,31.    The judge considered the various matters relied upon by Bloomberg but
concluded that they did not (either individually or collectively) provide sufficient

countervailing justification to outweigh the claimant’s reasonable expectation of
privacy. The judge also noted that there had been no evidence as to the alleged
assessment of the public interest by Bloomberg from those who actually made the

decision to publish (which he described as “surprising”).


32.    Having carried out the balancing exercise the judge concluded that the
claimant’s article 8 right prevailed. He noted that the restriction of the article 10 right

was limited to the information and observed that “there is no pressing need for the
contents of the LoR (as it related to the claimant) to be published. There is no public
interest justification for publishing the Information. On the contrary, the public interest

clearly favours upholding and maintaining the confidentiality of the information in the
LoR” (para 133).


33.    The judge upheld the claimant’s claim for misuse of private information,

awarded him £25,000 in damages, and granted an injunction preventing Bloomberg
from further publishing the Article or the information within England and Wales. In
relation to damages, he noted the claimant’s express concession that the truth or

falsity of the underlying information in the Letter of Request was not a relevant issue
and held that whilst he could rely upon the distress and embarrassment he had felt as
a result of the publication of the information, he could not be awarded any element of

purely reputational damages (paras 149-152).


       (iii)  The judgment of the Court of Appeal




34.    The leading judgment in the Court of Appeal was given by Simon LJ. Underhill LJ
gave a short concurring judgment and Bean LJ agreed with both judgments.



35.    In relation to stage one, Simon LJ rejected Bloomberg’s primary ground of
appeal that the judge was wrong to conclude that, in general, a person has a
reasonable expectation of privacy in a police investigation up to the point of charge

and stated as follows at para 82:


              “Since the matter arises for decision in the present case, 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


                                           Page 11,              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.”



He described this in para 81 as “the legitimate starting point” whilst expressly
accepting at para 85 that “an expectation of privacy in arrest/police investigation is not
invariable.”



36.    Simon LJ also rejected Bloomberg’s ground of appeal that the judge had wrongly
conflated private information with confidential information and held that the judge
had been entitled to place reliance on the highly confidential nature of the Letter of

Request in finding that the information was private: this was part of “the
circumstances in which and the purposes for which the information came into the
hands of the publisher” (para 92).



37.    Bloomberg’s other grounds of appeal in relation to stage one were also rejected
and Simon LJ concluded, in agreement with the judge, that a reasonable person of

ordinary sensibilities placed in the position of the claimant would have had a
reasonable expectation of privacy in relation to the information (para 102).


38.    In relation to stage two, Simon LJ found that there was no reason to disagree

with the judge’s view that there was no sufficient public interest to justify disclosure of
the Letter of Request’s contents and that the confidentiality of the UKLEB’s
investigation should be maintained (para 121).



39.    Simon LJ held that the judge had not taken an overly narrow view of those
matters which it would have been in the public interest to publish, observing that:



              “130. … A recognised public interest in alleged corruption in
              the Foreign State did not confer a wide authority to report on
              the contents of the LoR, in which there was not a sufficient

              public interest to justify publication. The Judge gave an
              instance of what the media might legitimately be expected to
              highlight: ‘for example, any perceived inadequacies in the


                                           Page 12,              investigation’. This was plainly not intended to be exhaustive
              of legitimate media concerns.



              131.    The difficulty with this argument remains the fact that
              Bloomberg had done little, if anything, more than publish the
              Information in the highly confidential LoR.”



40.    Simon LJ also rejected Bloomberg’s ground of appeal that the judge had erred,
when assessing the public interest, in taking the confidentiality of the Letter of Request

as his starting point and therefore applied the wrong test as this was a privacy and not
a breach of confidence case, stating as follows:


              “133. In my judgement this ground fails to recognise that ‘by

              far the weightiest factor’ supporting the Judge’s conclusion
              that the Claimant had a privacy interest in the information
              was ‘the circumstances in which and the purposes for which

              the information came into the hands of’ Bloomberg, see
              judgment at [125(ii)]. The Judge did not find that ‘the starting
              point’ was ‘the confidential nature and content of the LoR’.

              The Judge said that ‘the starting point’ was that ‘there was a
              very clear public interest that the contents of the LoR should
              not be published and the confidentiality of the UKLEB’s

              investigations should be maintained’, see para 129.


              134.    Although there was no claim for breach of confidence,
              there was a substantial and clearly identified public interest

              in maintaining the confidentiality of the LoR and its
              Information. The fact that the UKLEB had not advanced a
              claim in respect of the LoR was material, but so was its

              attitude to Bloomberg’s publication of its contents, as it
              belatedly emerged. This was a factor to be weighed when
              balancing the respective article 8 and article 10 interests, and

              I can see nothing to justify ‘appellate intervention’ ...”


41.    Simon LJ concluded that he would reject all of Bloomberg’s complaints “in
relation to the weighing of the article 8 and article 10 interests at stage two” (para

140).


42.    The Court of Appeal accordingly dismissed the appeal on all grounds.


                                           Page 13,4.     The legal framework




       (i)     The tort of misuse of private information




43.    Articles 8 and 10 of the ECHR provide as follows:


                                           “Article 8



                          Right to respect for private and family life


               1.     Everyone has the right to respect for his private and
               family life, his home and his correspondence.



               2.     There shall be no interference by a public authority
               with the exercise of this right except such as is in accordance
               with the law and is necessary in a democratic society in the

               interests of national security, public safety or the economic
               wellbeing of the country, for the prevention of disorder or
               crime, for the protection of health or morals, or for the

               protection of the rights and freedoms of others.


                                           Article 10



                                    Freedom of expression


               1.     Everyone has the right to freedom of expression. This

               right shall include freedom to hold opinions and to receive
               and impart information and ideas without interference by
               public authority and regardless of frontiers. This article shall
               not prevent states from requiring the licensing of

               broadcasting, television or cinema enterprises.


               2.     The exercise of these freedoms, since it carries with it

               duties and responsibilities, may be subject to such
               formalities, conditions, restrictions or penalties as are

                                            Page 14,               prescribed by law and are necessary in a democratic society,
               in the interests of national security, territorial integrity or

               public safety, for the prevention of disorder or crime, for the
               protection of health or morals, for the protection of the
               reputation or rights of others, for preventing the disclosure

               of information received in confidence, or for maintaining the
               authority and impartiality of the judiciary.”


44.    Section 12 of the Human Rights Act 1998 (“HRA”) contains specific provisions

which apply where, as in this case, “a court is considering whether to grant any relief
which, if granted, might affect the exercise of the Convention right to freedom of
expression”. In particular, section 12(4) provides that:



               “(4)   The court must have particular regard to the
               importance of the Convention right to freedom of expression
               and, where the proceedings relate to material which the

               respondent claims, or which appears to the court, to be
               journalistic, literary or artistic material (or to conduct
               connected with such material), to -



                      (a)    the extent to which - (i) the material has, or is
                      about to, become available to the public; or (ii) it is, or

                      would be, in the public interest for the material to be
                      published;


                      (b)    any relevant privacy code.”



45.    In the seminal decision of the House of Lords in Campbell v MGN Ltd [2004]
UKHL 22; [2004] 2 AC 457 it was recognised that the values enshrined in articles 8 and
10 had become part of the cause of action for breach of confidence and that in relation

to private information “the essence of the tort is better encapsulated now as misuse of
private information” - see the judgment of Lord Nicholls of Birkenhead at para 14. This
is a distinct cause of action from breach of confidence. It rests on different legal

foundations and protects different interests - see the judgment of Lord Nicholls in
Douglas v Hello! Ltd (No 3) [2007] UKHL 21; [2008] AC 1, para 255 and the judgment of
the Court of Appeal in Vidal-Hall v Google Inc [2015] EWCA Civ 311; [2016] QB 1003 in

which it was held that misuse of private information should be recognised as a tort.





                                            Page 15,46.    In giving the judgment of the Court of Appeal in Murray v Express Newspapers
plc Sir Anthony Clarke MR helpfully summarised the principles stated by Lord Nicholls

in Campbell as follows at para 24:


               “… (i) The right to freedom of expression enshrined in article
               10 of the Convention and the right to respect for a person’s

               privacy enshrined in article 8 are vitally important rights.
               Both lie at the heart of liberty in a modern state and neither
               has precedence over the other: see [2004] 2 AC 457, para 12.

               (ii) Although the origin of the cause of action relied upon is
               breach of confidence, since information about an individual’s
               private life would not, in ordinary usage, be called

               ‘confidential’, the more natural description of the position
               today is that such information is private and the essence of
               the tort is better encapsulated now as misuse of private

               information: see para 14. (iii) The values enshrined in articles
               8 and 10 are now part of the cause of action and should be
               treated as of general application and as being as much

               applicable to disputes between individuals as to disputes
               between individuals and a public authority: see para 17. (iv)
               Essentially the touchstone of private life is whether in respect

               of the disclosed facts the person in question had a
               reasonable expectation of privacy: see para 21. (v) In deciding
               whether there is in principle an invasion of privacy, it is

               important to distinguish between that question, which seems
               to us to be the question which is often described as whether
               article 8 is engaged, and the subsequent question whether, if
               it is, the individual’s rights are nevertheless not infringed

               because of the combined effect of article 8(2) and article 10:
               see para 22.”



47.    In Murray the Court of Appeal endorsed the two stage test for whether there
has been misuse of private information, as explained in the Court of Appeal decision in
McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73. As stated by Simon LJ at para 42

of his judgment in the present case, at stage one, the question is whether the claimant
has a reasonable expectation of privacy in the relevant information; if so, at stage two,
the question is whether that expectation is outweighed by the countervailing interest

of the publisher’s right to freedom of expression. This two stage test is now well
established.





                                            Page 16,       (ii)    Stage one




48.    In relation to both stage one and stage two, general guidance can be found in
the growing body of domestic legal precedent and also the jurisprudence of the
European Court of Human Rights (“ECtHR”) on articles 8 and 10 which the court must

take into account. Under section 12(4) of the HRA, where the proceedings relate to
material “which the respondent claims, or which appears to the court, to be
journalistic, literary or artistic material (or to conduct connected with such material)”

then the court “must have particular regard” to “any relevant privacy code.” In relation
to newspapers and magazines the relevant privacy code is the Editors’ Code of
Practice, established by the Editors’ Code of Practice Committee and overseen by the

Independent Press Standards Organisation - see Sicri v Associated Newspapers Ltd
[2020] EWHC 3541 (QB); [2021] 4 WLR 9.


49.    Whether there is a reasonable expectation of privacy is an objective question.

The expectation is that of a reasonable person of ordinary sensibilities placed in the
same position as the claimant and faced with the same publicity - see Campbell at para
99 per Lord Hope of Craighead; Murray at para 35.



50.    As stated in Murray at para 36, “the question whether there is a reasonable
expectation of privacy is a broad one, which takes account of all the circumstances of

the case”. Such circumstances are likely to include, but are not limited to, the
circumstances identified at para 36 in Murray - the so-called “Murray factors”. These
are:



       (1)            the attributes of the claimant;


       (2)            the nature of the activity in which the claimant was engaged;



       (3)            the place at which it was happening;


       (4)            the nature and purpose of the intrusion;



       (5)            the absence of consent and whether it was known or could be
       inferred;


       (6)            the effect on the claimant; and

                                            Page 17,       (7)           the circumstances in which and the purposes for which the
       information came into the hands of the publisher.



51.    Although the Murray factors are not exhaustive, and the significance of
individual factors will vary from case to case, they have been regularly considered and
applied by the courts by way of guidance and the appropriateness of so doing was

affirmed by the majority of the Supreme Court in In re JR38 [2015] UKSC 42; [2016] AC
1131 - see the judgment of Lord Toulson (with which Lord Hodge agreed) at paras 88
and 98 and the judgment of Lord Clarke of Stone-cum-Ebony (with which Lord Hodge

also agreed) at paras 113-114.


52.    Whilst all the circumstances of each case must be considered, Gatley on Libel

and Slander, (12th ed) at para 22.5 suggests that there are certain types of information
which will normally, but not invariably, be regarded as giving rise to a reasonable
expectation of privacy so as to be characterised as being private in character. These
are the state of a person’s physical or mental health or condition; a person’s physical

characteristics (nudity); a person’s racial or ethnic characteristics; a person’s emotional
state (in particular in the context of distress, injury or bereavement); the generality of
personal and family relationships; a person’s sexual orientation; the intimate details of

personal relationships; information conveyed in the course of personal relationships; a
person’s political opinions and affiliations; a person’s religious commitment; personal
financial and tax related information; personal communications and correspondence;

matters pertaining to the home; past involvement in criminal behaviour; involvement
in civil litigation concerning private affairs; and involvement in crime as a victim or a
witness.Support for this non-exhaustive listing is set out in footnotes 30 to 45. A

similar list is to be found in Carter-Ruck on Libel and Privacy, 6th ed (2010) at para 19.7
which is then discussed and explained at paras 19.9 to 19.54.


53.    Gatley also suggests that there are some types of information which will

normally not be regarded as giving rise to a reasonable expectation of privacy so as not
to be characterised as being private in character, namely: corporate information, a
person’s physical location, involvement in current criminal activity, a person’s

misperformance of a public role, information deriving from a hearing of a criminal case
conducted in public, and the identity of an author (see further, footnotes 48 to 53). A
similar list is set out and discussed in Carter-Ruck at paras 19.60-19.64.



54.    A relevant circumstance will be the extent to which the information is in the
public domain. Information that was private may become so well known that it is no

longer private. Whether this is so is a matter of fact and degree - see K v News Group
Newspapers Ltd [2011] EWCA Civ 439; [2011] 1 WLR 1827, para 10(3). In relation to
journalistic, literary or artistic material, section 12(4) of the HRA requires the court to

                                           Page 18,have particular regard to “the extent to which the material has, or is about to, become
available to the public”.



55.    The effect on the claimant must attain a sufficient level of seriousness for article
8 to be engaged - see R (Wood) v Comr of Police of the Metropolis [2009] EWCA Civ
414; [2010] 1 WLR 123 per Laws LJ at para 22; In re JR38 at para 87. In general, there

will be no reasonable expectation of privacy in trivial or anodyne information.


       (iii)   Stage 2




56.    Stage 2 involves a balancing of the claimant’s article 8 right to privacy and the
publisher’s article 10 right to freedom of expression in order to determine which

should prevail in the particular circumstances of the case - the so-called “balancing
exercise”.


57.    As Lord Hoffmann explained in Campbell at para 55:



               “Both [rights] reflect important civilised values, but, as often
               happens, neither can be given effect in full measure without

               restricting the other. How are they to be reconciled in a
               particular case? There is in my view no question of automatic
               priority. Nor is there a presumption in favour of one rather

               than the other. The question is rather the extent to which it is
               necessary to qualify the one right in order to protect the
               underlying value which is protected by the other. And the

               extent of the qualification must be proportionate to the need
               …”


58.    In In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47;

[2005] 1 AC 593, at para 17 Lord Steyn confirmed that neither right has precedence
over the other and identified the following considerations as being of particular
importance in carrying out the balancing exercise:



       (1)            “an intense focus on the comparative importance of the specific
       rights being claimed in the individual case”;





                                            Page 19,       (2)           “the justifications for interfering with or restricting each right”;
       and



       (3)           “the proportionality” of the respective interference or restriction.


59.    Under section 12(4) of the HRA the court must have particular regard “to the

importance of the Convention right to freedom of expression”. As stated by Lord
Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 205:


              “… the court should have particular regard to the importance

              of freedom of expression. The press discharges vital functions
              as a bloodhound as well as a watchdog. The court should be
              slow to conclude that a publication was not in the public

              interest and, therefore, the public had no right to know,
              especially when the information is in the field of political
              discussion.”



60.    The ECtHR jurisprudence is to similar effect. As stated in Axel Springer AG v
Germany (Application No 39954/08) [2012] EMLR 15, para 79:



              “The Court has also repeatedly emphasised the essential role
              played by the press in a democratic society. Although the
              press must not overstepcertain bounds, regarding in

              particular protection of the reputation and rights of others,
              its duty is nevertheless to impart - in a manner consistent
              with its obligations and responsibilities - information and

              ideas on all matters of public interest. Not only does the
              press have the task of imparting such information and ideas;
              the public also has a right to receive them. Were it otherwise,
              the press would be unable to play its vital role of ‘public

              watchdog’ (see Bladet Tromsø and Stensaas v Norway (1999)
              29 EHRR 125, paras 59 and 62, and Pedersen v Denmark
              (2004) 42 EHRR 24, para 71).”



61.    The extent to which publication is in the public interest is of central importance.
This is reflected in section 12(4) of the HRA under which, in relation to journalistic,

literary or artistic material, the court is required to have particular regard to the extent
to which “it is, or would be, in the public interest for the material to be published”.



                                           Page 20,62.    In considering the public interest in publication, the contribution that
publication will make to a debate of general interest is a factor of particular

importance. In Von Hannover v Germany (Application No 59329/00) [2004] EMLR 21,
para 76 it was said by the ECtHR that it should be “the decisive factor in balancing the
protection of private life against freedom of expression”. In Axel Springer it was said to

be an “initial essential criterion”. Other factors of likely relevance identified in that
case are:


       (1)            how well-known is the person concerned and what is the subject

       of the report;


       (2)            the prior conduct of the person concerned;



       (3)            the method of obtaining the information and its veracity;


       (4)            the content, form and consequences of publication; and



       (5)            the severity of the restriction or interference and its
       proportionality with the exercise of the freedom of expression.


5.     The issues




63.    The issues, as defined by the parties, which arise on this appeal are:



       (1)            Whether the Court of Appeal was wrong to hold that there is a
       general rule, applicable in the present case, that a person under criminal
       investigation has, prior to being charged, a reasonable expectation of privacy in

       respect of information relating to that investigation.


       (2)            Whether the Court of Appeal was wrong to hold that, in a case in
       which a claim for breach of confidence was not pursued, the fact that

       information published by Bloomberg about a criminal investigation originated
       from a confidential law enforcement document rendered the information
       private and/or undermined Bloomberg’s ability to rely on the public interest in

       its disclosure.



                                            Page 21,       (3)            Whether the Court of Appeal was wrong to uphold the findings of
       Nicklin J that the claimant had a reasonable expectation of privacy in relation to

       the published information complained of, and that the article 8/10 balancing
       exercise came down in favour of the claimant.


6.     Issue 1 - Whether the Court of Appeal was wrong to hold that there is a


general rule, applicable in the present case, that a person under criminal


investigation has, prior to being charged, a reasonable expectation of privacy in

respect of information relating to that investigation.




       (i)     An outline of the broad issues under this ground of appeal




64.    As noted above at para 47, in order to establish misuse of private information, a
claimant must first show that the information in question is private. The test at stage

one is whether there is objectively a reasonable expectation of privacy taking into
account all the circumstances of the case, including but not limited to, the so-called
Murray factors, enumerated at para 50 above.



65.    Issue 1 relates to the application of this stage one test and whether the judge,
at para 119, and the Court of Appeal, at paras 81, 82, 144, and 147, were correct to
hold that there was a general rule applicable in this case, that a person under criminal

investigation has, prior to being charged, a reasonable expectation of privacy in
respect of information relating to that investigation. Simon LJ in the Court of Appeal
characterised this general rule, at para 81, as “the legitimate starting point.”



66.    Before considering this ground of appeal it is appropriate to define the general
rule or legitimate starting point, which was adumbrated by both the judge and by the
Court of Appeal.



67.    First, the general rule or legitimate starting point is not a legal rule or legal
presumption, let alone an irrebuttable presumption. The determination as to whether

there is a reasonable expectation of privacy in the relevant information is a fact-
specific enquiry.



                                            Page 22,68.     Second, the general rule or legitimate starting point does not invariably lead to
a finding that there was objectively a reasonable expectation of privacy in the

information. The judge stated, at para 124, that “an expectation of privacy in
arrest/police investigation is not invariable” and whether it arises in a particular case
“will always depend upon the individual facts of that case.” In the Court of Appeal

Simon LJ stated, at paras 57, 81 and 85, that there is not “an invariable or unqualified
right to privacy during an investigation”; instead, it is “the legitimate starting point.”
Underhill LJ stated, at para 147, that “[i]t is important to emphasise that… the

proposition that a person has a reasonable expectation of privacy in relation to a police
(or similar) investigation is not a universal rule and that the circumstances of a
particular case may justify a different conclusion.” So, for instance, public rioting is not

the kind of activity which article 8 exists to protect: see In re JR38 at para 100.


69.    Third, the general rule or legitimate starting point does not obviate the need for
the claimant to set out and to prove the circumstances establishing that there was

objectively a reasonable expectation of privacy.


70.    Fourth, we understand that the reference to a general rule or a legitimate
starting point means that once it is established that the relevant information was that

a person, prior to being charged, was under criminal investigation then the correct
approach is for a court to start with the proposition that there will be a reasonable
expectation of privacy in respect of such information and thereafter consider by

reference to all the circumstances of the case whether the reasonable expectation
either does not arise at all or was significantly reduced. If the expectation does not
arise then the information can be published. If the expectation is reduced it will bear

on the weight to be attached to the article 8 rights at stage two; see Simon LJ at para
84.


71.    Fifth, the rationale for such a starting point is that publication of such

information ordinarily causes damage to the person’s reputation together with harm
to multiple aspects of the person's physical and social identity such as the right to
personal development, and the right to establish and develop relationships with other

human beings and the outside world all of which are protected by article 8 of the
ECHR: see Niemietz v Germany (Application No 13710/88) (1992) 16 EHRR 97, para 29.
The harm and damage can on occasions be irremediable and profound.



72.    We consider that the general rule or the legitimate starting point adumbrated in
the courts below in relation to this category of information is similar to what can be

termed a general rule in relation to certain other categories of information. It has
already been recognised that a consideration of all the circumstances of the case,
including but not limited to the so-called Murray factors, will, generally, in relation to

                                            Page 23,certain categories of information lead to the conclusion that the claimant objectively
has a reasonable expectation of privacy in information within that category. The most

striking example of such a category is information concerning the state of an
individual’s health which is widely considered to give rise to a reasonable expectation
of privacy: see McKennitt v Ash [2005] EWHC 3003 (QB) at para 142 per Eady J, and in

the Court of Appeal at para 23 per Buxton LJ. There can of course be exceptions even
in relation to information concerning the state of an individual’s health, but generally,
details as to an individual’s health are so obviously intimate and personal that a

consideration of all the circumstances will result in that information being
appropriately characterised as private under the stage one test unless there are strong
countervailing circumstances.



73.    Accordingly, the first question posed under Issue 1 is whether the courts should
proceed from a similar starting point of there being a reasonable expectation of
privacy in respect of information that a person is under criminal investigation and in

respect of information relating to that investigation, prior to the person being charged.
The second question posed under this ground of appeal is whether the starting point
applies in the present case.



       (ii)    A summary of the grounds on which Bloomberg challenges the general

       rule or legitimate starting point




74.    In summary Bloomberg challenges the general rule or legitimate starting point

in relation to this category of information on the following bases.


       (a)     Presumption of innocence. Bloomberg submits that, given the public’s
       ability to observe the presumption of innocence so as not to assume guilt, the

       courts below incorrectly assessed the general negative effect on the individual’s
       reputation of publication of information that he is under criminal investigation.
       In this way Bloomberg argues that the application by the courts below of a

       general rule or legitimate starting point is unsound because it significantly
       overstates the capacity of publication of the information to cause damage to
       the claimant’s reputation given the public’s ability to observe the presumption

       of innocence.


       (b)     Defamation authorities. Bloomberg submits that the reasoning of the
       courts below for upholding a general rule of privacy (namely, the “human

       characteristic” to equate suspicion or investigation with guilt on the assumption

                                            Page 24,that there is “no smoke without fire”) runs contrary to well-established
principles in defamation law that the ordinary reasonable reader is not unduly

suspicious or avid for scandal, can be taken to know about things that are
common knowledge, and is capable of distinguishing suspicion or investigation
from guilt. Again, relying on these authorities Bloomberg argues that the

application by the courts below of a general rule or legitimate starting point is
unsound because it significantly overstates the capacity of publication of the
information to cause damage to the claimant’s reputation given the ordinary

reasonable reader’s ability to observe the presumption of innocence.


(c)    Reputational damage. Bloomberg submits that the courts below
incorrectly held that information about an individual being subject to criminal

investigation is private because it is potentially reputationally damaging.
Bloomberg submits that information is not protected because the consequential
harmful impact relates to private life. Rather, information is protected because -

irrespective of the effect on the claimant’s reputation - information of that
nature belongs to a part of the claimant’s life which is of no-one else’s concern.
Typical examples of such information are information as to health, the

intimacies of relationships and family life, sexual expression and the inner
workings of the mind. In this case Bloomberg argues that information in relation
to the claimant’s business activities does not fall within an area of his life that is

no-one else’s concern.


(d)    Submission that the courts below applied an incorrect legal test.
Bloomberg submits that the courts below failed to apply the correct legal test at

stage one which involves consideration of “all the circumstances of the case”.
Rather, Bloomberg says that the courts below, by the application of a general
rule or starting point, gave pre-ordained weight to one circumstance, namely

the effect on the claimant, and obscured consideration of all the other
circumstances such as:


       (1)            whether the activity about which information is disclosed

       (or to be disclosed) is of such a nature as to fall within the scope of
       “private life” so that article 8 is engaged. In this respect Bloomberg
       argues that the Murray factor of “the nature of the activity in which the

       claimant was engaged” was incorrectly confined by the courts below to
       the claimant being the subject of the UKLEB’s investigation whereas the
       activity should have been identified as “alleged corruption in relation to X

       Ltd’s activities in the foreign country”;




                                     Page 25,               (2)           the status of the claimant so that consideration of the
               Murray factor of “the attributes of the claimant” ought to have led the

               courts below to the recognition that businessmen actively involved in the
               affairs of large public companies, such as the claimant, are not in that
               sector of their lives private individuals but rather that they knowingly lay

               themselves open to close scrutiny of their acts by the media; and


               (3)    whether publication of the information undermines personal
               integrity as distinct from merely harming reputation.



       (iii)   Issues that do not arise on this ground of appeal




75.    Before proceeding further it is appropriate to identify various issues that do not
arise for determination on this ground of appeal.


76.    First, this ground of appeal is confined to the stage one test. Even if information

is characterised as private it would still be capable of being published if outweighed at
stage two by the countervailing interest of the publisher’s right to freedom of
expression in accordance with article 10 of the ECHR: see In re JR38 at para 85.



77.    Second, it was common ground that if someone is charged with a criminal
offence there can be no reasonable expectation of privacy. We consider, generally,

that to be a rational boundary, as the open justice principle in a free country is
fundamental to securing public confidence in the administration of justice: Scott v
Scott [1913] AC 417. Consequently, whenever a person is charged with a criminal

offence the open justice principle generally means that the information is of an
essentially public nature so that there can be no reasonable expectation of privacy in
relation to it.



78.    Third, the information the subject of this appeal is set out at para 19 above. The
information relates to the investigation of the claimant by the UKLEB, an organ of the
state, and includes information as to the UKLEB’s suspicions, assessments, and

preliminary conclusions to the disfavour of the claimant. This appeal does not concern
the publication of information about an individual’s wrongdoing resulting from
Bloomberg’s own investigations. Accordingly, the appeal is confined to the impact of

information derived from an investigation of a person by an organ of the state rather
than the distinct and separate situation that might arise if Bloomberg wished to
publish information as to the results of its own investigations.


                                            Page 26,79.    Fourth, Nicklin J awarded £25,000 damages for Bloomberg’s misuse of private
information. There has been no appeal against that award, or the principles applied by

the judge in assessing the amount of damages. The applicable principles as to damages
formulated in this case and in Sicri v Associated Newspapers Ltd may merit
consideration in a case in which the issues arise for determination. We have

reservations about the extent to which quantification of damages for the tort of
misuse of private information should be affected by the approach adopted in cases of
defamation, but it is not appropriate to address this in this judgment.



       (iv)   The negative effects of publishing information that a person is under

       criminal investigation and a resulting uniform general practice




80.     For some time, judges have voiced concerns as to the negative effect on an
innocent person’s reputation of the publication that he or she is being investigated by

the police or an organ of the state. These concerns are echoed in the Leveson Inquiry
Report, and have the support of the senior judiciary, the College of Policing, the
Metropolitan Police Service, the Independent Office of Police Conduct, the Director of

Public Prosecutions, the Home Affairs Select Committee and the Government.


81.    Several themes emerge from the material articulating those concerns. First, the

growing recognition that as a matter of public policy the identity of those arrested or
suspected of a crime should not be revealed to the public has now resulted in a
uniform general practice by state investigatory bodies not to identify those under

investigation prior to charge. Second, the rationale for this uniform general practice is
the risk of unfair damage to reputation, together with other damage. Third, the
practice applies regardless of the nature of the suspected offence or the public
characteristics of the suspect. To be suspected by the police or other state body of a

crime is damaging whatever the nature of the crime. The damage occurs whatever the
characteristic or status of the individual. Fourth, there is uniformity of judicial
approach, at first instance in a series of cases and in the Court of Appeal in this case,

based on judicial knowledge that publication of information that a person is under
criminal investigation will cause damage to reputation together with other damage,
irrespective of the presumption of innocence. This has led to a general rule or

legitimate starting point that such information is generally characterised as private at
stage one.



82.    Attorney General v MGN Ltd [2011] EWHC 2074 (Admin); [2012] 1 WLR 2408,
which was referred to at Part F, Chapter 1, para 3.25 and Part F, Chapter 5, paras 4.1-
4.21 by Leveson LJ in the second volume of the report of his Inquiry into the Culture,

                                           Page 27,Practices and Ethics of the Press dated 29 November 2012, HC 780-II, addressed the
case of Mr Christopher Jefferies. Mr Jefferies was exposed as having been arrested on

suspicion of murder. He was later demonstrated to have been innocent of it but
meanwhile he had been subjected to a protracted campaign of vilification in the press,
leading him to leave his home and to change his appearance. Although in that case the

press had committed contempt of court and had published actionable libels about Mr
Jefferies, the significance of the case for present purposes lies in the ease with which
arrest may generally be associated with guilt. In the event Leveson LJ recommended at

Part G, Chapter 3, para 2.39 that:


              “save in exceptional and clearly identified circumstances (for
              example, where there may be an immediate risk to the

              public), the names or identifying details of those who are
              arrested or suspected of a crime should not be released to
              the press nor the public.”



83.    That recommendation was taken up by the College of Policing which is the
professional body whose purpose is to provide those working in policing with the skills
and knowledge necessary for effective policing. The College is a company limited by

guarantee wholly owned by the Secretary of State for the Home Department. It has
various statutory functions in relation to the issuing of guidance and the giving of
advice deriving predominantly from the Police Act 1996: see R (Miller) v College of

Policing [2020] EWHC 255 (Admin); [2020] HRLR 10, para 102 and R (Officer W80) v
Director General of the Independent Office for Police Conduct [2020] EWCA Civ 1301;
[2021] 1 WLR 418, para 30. In 2013 the College of Policing published Guidance on

Relationships with the Media which, at para 3.5.2, stated:


              “Police forces must balance an individual’s right to respect
              for a private and family life, the rights of publishers to

              freedom of expression and the rights of defendants to a fair
              trial. Decisions must be made on a case-by-case basis but,
              save in clearly identified circumstances, or where legal

              restrictions apply, the names or identifying details of those
              who are arrested or suspected of a crime should not be
              released by police forces to the press or the public. Such

              circumstances include a threat to life, the prevention or
              detection of crime or a matter of public interest and
              confidence.” (Emphasis added)



84.    In 2017 the College of Policing published further guidance on Media Relations
(which was subsequently updated again in 2019) which expressly recognises that

                                           Page 28,reputational risks are the reason for not disclosing the names prior to the point of
charge. The further guidance states at 3.2:



              “Respecting suspects’ rights to privacy


              Suspects should not be identified to the media (by disclosing

              names or other identifying information) prior to the point of
              charge except where justified by clear circumstances eg a
              threat to life, the prevention or detection of crime or a

              matter of public interest and confidence.” (Emphasis added)


The further guidance continues at 4.2:



              “Naming on arrest


              Police will not name those arrested, or suspected of a crime,
              save in exceptional circumstances where there is a legitimate

              policing purpose to do so. This position is in accordance with
              recommendations and findings of the Leveson Inquiry (part
              1), the Information Commissioner and the Home Affairs

              Select Committee.


              A legitimate policing purpose may include circumstances
              such as a threat to life, the prevention or detection of crime,

              or where police have made a public warning about a wanted
              individual.



              …


              This approach recognises that, in cases where the police
              name those who are arrested, there is a risk of unfair damage

              to the reputations of those persons, particularly if they are
              never charged …” (Emphasis added)


We agree with the observation of Simon LJ, at para 80, that the College of Policing

guidance “reflect[s] both an operational response to criticisms about the unfairness of
previous incidents in which suspects were named” and various “judicial observations”
regarding this.

                                          Page 29,85.    The same approach has been adopted by the Independent Office for Police
Conduct (“IOPC”) which oversees the police complaints system in England and Wales.

The IOPC carried out an investigation, known as Operation Kentia, into the conduct of
Metropolitan Police officers who applied for search warrants for properties connected
to the late Lord Bramall, the late Lord Brittan and Harvey Procter as part of the force’s

Operation Midland investigation into allegations made by Carl Beech. Following that
investigation and in its report dated October 2019, the IOPC recommended, at p 31,
para 50, that:



              “Naming a suspect before charge is a major step and should
              only be undertaken in exceptional circumstances and for a
              clear policing purpose.”



86.    It is apparent from the Report entitled Police Bail dated 20 March 2015 of the
House of Commons Home Affairs Committee (Seventeenth Report of Session 2014-15,
HC 962, para 7) that the same approach has also been adopted by both the

Commissioner of the Metropolitan Police and by the Crown Prosecution Service. The
Report went on to recommend this approach stating, at p 13, para 3, that:



              “The police should not release information on a suspect to
              the media in an informal, unattributed way. If the police do
              release the name of a suspect it has to be limited to

              exceptional cases, such as for reasons of public safety.”


87.    The same approach has been adopted by the Government. In a written
ministerial answer dated 24 December 2015, the Minister of State for Home Affairs,

Lord Bates, cited the College of Policing’s guidance and stated that: “It is the
Government’s position that, in general, there should be a right to anonymity before
the point of charge.” On 16 March 2021, the current Parliamentary Under-Secretary of

State for Justice, Lord Wolfson of Tredegar QC, reiterated that position, explaining that
“there is indeed a difference between pre and post charge. The Government believe
that, in principle and in general, there should be a right to anonymity pre charge in

respect of all offences.”


88.    Exactly the same approach was contained in the paper dated 4 March 2013
issued by Treacy LJ and Tugendhat J entitled Contempt of Court, A Judicial Response to

Law Commission Consultation Paper No 209. They made clear that it reflected the
views of the President of the Queen’s Bench Division, the Senior Presiding Judge,
Leveson and Goldring LJJ and other senior judges. They observed, at para 5:



                                          Page 30,              “The police arrest many people who are never charged. If
              there were a policy that the police should consistently

              publish the fact that a person has been arrested, in many
              cases that information would attract substantial publicity,
              causing irremediable damage to the person’s reputation.”

              (Emphasis added)


They proceeded to endorse the recommendation made by Leveson LJ in para 2.39 of
his report.



89.    On 31 October 2016 Sir Richard Henriques, a former High Court judge, made a
report entitled An Independent Review of the Metropolitan Police Service’s handling of

non-recent sexual offence investigations alleged against persons of public prominence.
Sir Richard said, at para 1.67:


              “I consider it most unlikely that a Government will protect

              the anonymity of suspects pre-charge. To do so would enrage
              the popular press whose circulation would suffer. Present
              arrangements, however, have caused the most dreadful

              unhappiness and distress to numerous suspects, their
              families, friends and supporters. Those consequences were
              avoidable by protecting anonymity. Nobody is safe from false

              accusation and damaging exposure under present
              arrangements. A reputation built on a lifetime of public
              service or popular entertainment can be extinguished in an

              instant. I sincerely believe that statutory protection of
              anonymity pre-charge is essential in a fair system.” (Emphasis
              added)



90.    The private nature of information that a person, prior to charge, is subject to
investigation by the police has been considered in several first instance judgments. In
each case, the characterisation of such information as private was based on the

potential that its publication would ordinarily cause substantial damage to the
person’s reputation, and other damage.


91.    In Hannon v News Group Newspapers Ltd [2014] EWHC 1580 (Ch); [2015] EMLR

1 the claimant brought a claim for misuse of private information arising from the
defendant’s publication of the fact of his arrest. Mann J observed, at para 92, that:
“The general practice of the police is, by and large, not to identify those who have

been formally arrested …”. He cited at paras 93-95 the observations of Sir Brian

                                          Page 31,Leveson in the Leveson Inquiry Report and the formal consultation response published
by Tugendhat J and Treacy LJ, see para 88 above, which supported the proposition that

media reports of arrests engage the privacy rights of the arrested individual. On that
basis, Mann J refused to strike out the misuse of private information claim.


92.    In PNM v Times Newspapers Ltd [2014] EWCA Civ 1132; [2015] 1 Cr App R 1

Sharp LJ referred, at para 37, to “a growing recognition that as a matter of public policy
the identity of those arrested or suspected of a crime should not be released to the
public save in exceptional and clearly defined circumstances”.



93.    In Crook v Chief Constable of Essex Police [2015] EWHC 988 (QB) a police force
issued a press release which stated that the claimant was wanted on suspicion of rape.

The claimant had not been arrested or charged with any offence. The claimant issued
proceedings against the police for damages for breach of confidence, breach of his
data protection rights and a violation of article 8. As the judgment records at para 45:
“[t]here is no dispute in relation to the claim under article 8 that the information is

such that there was a reasonable expectation of privacy.” The court went on to hold, at
para 65, that the disclosure of the information was not necessary and proportionate to
any legitimate aim and had therefore violated article 8.



94.    In ERY v Associated Newspapers Ltd [2016] EWHC 2760 (QB); [2017] EMLR 9 the
claimant was a businessman who had been interviewed by police under caution in

respect of his suspected involvement in a financial crime. The defendant publisher
conceded that the fact that the businessman had been interviewed under caution
would engage his article 8 right and that, on the facts, the defendant’s article 10 right

was not capable of prevailing over that right; see paras 11 and 52. On the basis of that
concession, Nicol J held, at para 65, that the businessman had a reasonable
expectation of privacy in the information that he was being investigated by the police.



95.    In Richard v British Broadcasting Corpn [2018] EWHC 1837 (Ch); [2019] Ch 169
Mann J held at para 248:


              “It seems to me that on the authorities, and as a matter of

              general principle, a suspect has a reasonable expectation of
              privacy in relation to a police investigation, and I so rule. As a
              general rule it is understandable and justifiable (and

              reasonable) that a suspect would not wish others to know of
              the investigation because of the stigma attached. … If the
              presumption of innocence were perfectly understood and

              given effect to, and if the general public were universally

                                           Page 32,              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
              (assuming no charge) then the position might be different.
              But neither of those things is true. The fact of an

              investigation, as a general rule, will of itself carry some
              stigma, no matter how often one says it should not.”


96.    In Khan v Bar Standards Board [2018] EWHC 2184 (Admin) a barrister had been

found to have committed professional misconduct by “speaking publicly of criminal
allegations, his knowledge of which derived from his professional involvement, at the
pre-charge stage, in a matter where no charges had in the event been brought”. He

sought to challenge the disciplinary findings on the basis (amongst other things) that
they violated his right to free expression under article 10. In rejecting that argument,
Warby J cited Richard and explained, at para 47, that: “The open justice principle does

not extend this far; the starting point in such a case is that the person under criminal
investigation has a reasonable expectation of privacy”.


97.    In Sicri v Associated Newspapers Ltd Warby J held that an individual who had

been arrested as a suspect in connection with the Manchester Arena terrorist attack in
2017, but who was subsequently released without charge, had a reasonable
expectation of privacy in relation to information about his arrest. The judge went on to

hold that a newspaper’s publication of that information constituted a misuse of private
information. In reaching this conclusion, Warby J referred to some of the authorities
and the Court of Appeal’s judgment in the present case and observed, at para 85, that

they reflected “a general rule in favour of pre-charge anonymity for suspects”. Warby J
explained, at para 76, that “[t]he notion that information about official suspicion
engages an individual’s article 8 rights, because of its reputational impact, appears to

me to have been firmly established at the highest level over a decade ago”.


98.    In Mosley v Associated Newspapers Ltd [2020] EWHC 3545 (QB); [2021] 4 WLR
29 Nicklin J explained, at para 57, that: “In the ordinary course, neither the police nor a

prosecuting authority will identify suspects in criminal investigations prior to charge,
save where justified by clear and exceptional circumstances …”. He went on to
observe, at para 58, that the law has “achieved a measure of coherence. In general,

the fact that someone has been under criminal investigation or suspicion by the police
or prosecuting authority will only become public at the point of charge; ie the point at
which the process of the court has been engaged”.



99.    In R (Rai) v Crown Court at Winchester [2021] EWHC 339 (Admin); [2021] ACD
70 the Divisional Court (Stuart-Smith LJ and Nicklin J) observed, at para 49, that the

                                           Page 33,judgments in Richard, Sicri and the present case “are authority for the proposition that,
in general, a suspect in a criminal investigation has an expectation of privacy up to the

point of charge; not thereafter. At the point of charge, or shortly thereafter, the
suspect (now defendant) will appear in a criminal court and the open justice principle
will lead to the public identification of the defendant as having been charged with a

criminal offence”.


       (v)    The presumption of innocence (see para 74(a) above)




100.   Bloomberg submits that the general rule or legitimate starting point
adumbrated by the courts below is unsound because it significantly overstates the

likelihood of publication of the information causing damage to the claimant’s
reputation and underestimates the public’s ability to observe the legal presumption of
innocence.



101.   One of the so-called Murray factors which is to be taken into account in
determining whether there is a reasonable expectation of privacy, is the effect of
publication of the information on the claimant. In relation to that factor if the

presumption of innocence was perfectly understood and given effect to, so that the
general public in their everyday lives, in their social interactions, and in their business
and professional relationships applied the legal presumption of innocence, then there

would be no stigma and no adverse effect on the claimant. In this way, Bloomberg
submits, the impact of the presumption of innocence eliminates, or significantly
reduces, the negative effects of publication of information that a person is under

criminal investigation. On the other hand, the claimant submits that there are ample
grounds for concluding that despite the presumption of innocence, which applies as a
matter of law in criminal proceedings, experience suggests that generally the public’s
reaction to publication of information as to police suspicions is that reputational and

other damage ordinarily will be caused to the person even if he or she is entirely
innocent.



102.   Bloomberg relies on the observations of Lord Rodger of Earlsferry in In re
Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697 to support their
contention that the presumption of innocence ameliorates the adverse effect of

publication of the information. In that case Lord Rodger, speaking of the publication of
the names of defendants in advance of criminal trials, observed at para 66:


              “In allowing this, the law proceeds on the basis that most

              members of the public understand that, even when charged

                                           Page 34,              with an offence, you are innocent unless and until proved
              guilty in a court of law. That understanding can be expected

              to apply, a fortiori, if you are someone whom the prosecuting
              authorities are not even in a position to charge with an
              offence and bring to court.” (Emphasis added)



103.   These observations by Lord Rodger were considered by this court in Khuja v
Times Newspapers Ltd [2017] UKSC 49; [2019] AC 161. In that case Mr Tariq Khuja had
been arrested by the police as someone suspected of being involved in sexual offences

against children. He had been released without being charged but at a subsequent
criminal trial, in which other individuals were accused of sexual offences against
children, a significant part of a complainant’s evidence related to her abuse by a man

with the same first name as Mr Khuja. The Times and the Oxford Mail wished to
publish information about Mr Khuja derived from those proceedings at trial and Mr
Khuja, despite the public nature of the trial, applied for an interim injunction relying on

the tort of misuse of private information to prevent publication.


104.   The issue in Khuja concerned the limit on the permissible reporting of evidence
given in public during a criminal trial. That is a different issue than in the present

appeal which involves the limit imposed by the law on the ability to report, not
criminal trials, but rather police suspicion prior to charge. However, one of the issues
that arose in Khuja was the adverse effect of publication on the claimant of the

information in that case given the public’s understanding of the presumption of
innocence. The impact of the presumption of innocence on the negative effects of
publication of the information in this case also arises in this appeal.



105.   The minority in Khuja, Lord Kerr of Tonaghmore and Lord Wilson, considered at
paras 44 and 45 that given that he held that “the law proceeds on the basis” that the
public understand the presumption of innocence, as emphasised at para 102 above,

Lord Rodger had articulated a legal presumption and they held, at para 56, that there
was no basis for such a presumption. They considered that Tugendhat J and the Court
of Appeal had fallen into error by proceeding on the basis of an asserted presumption

which had no proper legal foundation. Accordingly, they conducted the balancing
exercise again recognising “the risk to [Mr Khuja] that his identification would generate
a widespread belief not only that he was guilty of crimes which understandably attract

an extreme degree of public outrage but also that he had so far evaded punishment for
them.” Accordingly, notwithstanding that he was presumed by the law to be innocent
there was “the risk of profound harm to the reputational, social, emotional and even

physical aspects of his private and family life …”. They considered, at para 59, that the
scales “descended heavily in favour of [Mr Khuja’s] rights under article 8”. The minority



                                           Page 35,would have found in favour of Mr Khuja so as to grant an interim injunction prohibiting
publication of the information.



106.   Lord Sumption, delivering the majority judgment in Khuja, held at para 8, that
Lord Rodger’s observation could not be treated as a legal presumption. Rather, Lord
Sumption stated that “experience suggests that as a general rule the public understand

that there is a difference between allegation and proof.” He continued that whether
they did so would “differ from case to case, depending on, among other things, the
gravity of the allegations, the character of the evidence and the extent of the publicity

surrounding the trial.” Lord Sumption, reading the relevant part of Tugendhat J’s
judgment as a whole, said, at para 33, that the judge “was doing no more than saying
that while some members of the public would equate suspicion with guilt, most would

not.” Lord Sumption considered, at para 34, that this “conclusion was one that [the
judge] was entitled to reach” though he entered the qualification casting doubt on
whether this was a realistic reflection of the position, by stating that “Left to myself, I

might have been less sanguine than he was about the reaction of the public to the way
in which [Mr Khuja] featured in the trial.” The majority found that the lower courts had
not fallen into error, so there was no need to conduct the balancing exercise again.

Accordingly, the appeal was dismissed.


107.   It is apparent from both the majority and minority judgments in Khuja that the
public’s understanding of the effect on a person of publication of information that they

are under police suspicion of having committed a criminal offence is a question of fact
rather than of law. Lord Sumption specifically rejected the proposition that any legal
presumption had been applied. He considered that the adverse effect had to be

determined on a case-by-case basis.


108.   The presumption of innocence is a legal presumption applicable to criminal
trials. In that context the presumption weighs heavily in the directions that a jury is

given or in the self-directions that a judge sitting alone applies. However, the context
here is different. In this context the question is how others, including a person’s inner
circle, their business or professional associates and the general public, will react to the

publication of information that that person is under criminal investigation. All the
material which we have set out between paras 80-99 above now admits to only one
answer, consistent with judicial experience, namely that the person’s reputation will

ordinarily be adversely affected causing prejudice to personal enjoyment of the right
to respect for private life such as the right to establish and develop relationships with
other human beings. Accordingly, we reject the submission that a general rule or

starting point is unsound because it significantly overstates the capacity of publication
of the information to cause reputational and other damage to the claimant given the
public’s ability and propensity to observe the presumption of innocence.


                                           Page 36,109.   We would add that in the course of submissions reference was made to
expressions such as “there being no smoke without fire” and that “mud sticks”. These

expressions were then followed by debates as to whether “smoke” represented
rumour and “fire” was the equivalent of guilt, or whether fire could be reasonable
suspicion of guilt. We consider that such expressions obscure rather than elucidate the

essential point, which in the event was accepted by Bloomberg, namely that
reputational and other harm will ordinarily be caused to the individual by the
publication of such information. The degree of that harm depends on the factual

circumstances, but experience shows that it can be profound and irremediable.


       (vi)   The relevance of defamation authorities (see para 74(b) above)




110.   Bloomberg submits that the reasoning of the courts below for upholding a
general rule of a reasonable expectation of privacy (namely, the “human
characteristic” to equate suspicion or investigation with guilt on the assumption that

there is “no smoke without fire”) runs contrary to well-established principles in
defamation law: see para 74(b) above. Bloomberg argues in accordance with those
principles that the ordinary reasonable reader is not unduly suspicious, can be taken to

know things that are common knowledge and is capable of distinguishing suspicion
from guilt. By contrast, it is argued that the courts below incorrectly applied an unduly
suspicious hypothetical reader, who always adopts a bad meaning (who “assumes the

worst”) where a less serious or non-defamatory meaning is available, and who
“overlooks” the “fundamental” and well-known principle of the presumption of
innocence. In that respect we were referred to well-known authorities in relation to

the tort of defamation.


111.   However, the claimant did not bring a claim in defamation. The sole claim was
in the tort of misuse of private information which is a separate, distinct and stand-

alone tort. It has different constituent elements and serves a distinct purpose. In the
tort of defamation, the falsity of the information at issue is of central importance.
However, the purpose of the tort of misuse of private information is not confined to

protection of an individual from publication of information which is untrue, rather its
purpose is to protect an individual’s private life in accordance with article 8 of the
ECHR, whether the information is true or false.



112.   We consider that it is inappropriate to read across the concept of a hypothetical
reader from the tort of defamation into the tort of misuse of private information. As

Lord Sumption stated in Lachaux v Independent Print Ltd [2019] UKSC 27; [2020] AC
612, para 1:


                                           Page 37,              “The tort of defamation is an ancient construct of the
              common law. It has accumulated, over the centuries, a

              number of formal rules with no analogue in other branches
              of the law of tort. Most of them originated well before
              freedom of expression acquired the prominent place in our

              jurisprudence that it enjoys today.”


In the tort of defamation, the meaning of a statement is not that which other people
may actually have attached to it, but that which is derived from an objective

assessment of the defamatory meaning that the notional ordinary reasonable reader
would attach to it. In the tort of misuse of private information, part of the factual
enquiry is as to the effect of publication of the information on the claimant. The

question becomes how would others perceive the claimant if the information was
published? That enquiry does not require the application of an objective assessment of
the defamatory meaning that the notional ordinary reasonable reader would attach to

the information. The outcome of that enquiry in this case is straightforward as it is
accepted by Bloomberg that damage to reputation and other damage will occur
because the claimant is suspected by the UKLEB of being a criminal. Bloomberg

suggests that the factual enquiry as to how others perceive the claimant should
exclude any consideration as to whether others might perceive him as actually guilty of
the offence. The tort of misuse of private information is not confined in that way, so

the factual enquiry as to how others perceive the claimant can include a range of
reactions including that some may perceive the claimant as guilty whilst others may
perceive his or her conduct as having given cause for the criminal investigation.



113.    We reject Bloomberg’s argument at para 74(b) above.


       (vii)  Reputational damage (see para 74(c) above)




114.   Bloomberg submits that the courts below incorrectly held that information
about an individual being subject to criminal investigation is private because it is

potentially reputationally damaging. Rather, Bloomberg submits that information is
protected because - irrespective of the effect on the claimant’s reputation -
information of that nature belongs to a part of the claimant’s life which is of no-one

else’s concern.


115.   We consider that this is an unduly restrictive view of the protection afforded by
article 8 of the ECHR. The ECtHR (Grand Chamber) in Denisov v Ukraine (Application No

76639/11) (unreported) 25 September 2018, para 95, relying on S and Marper v United

                                           Page 38,Kingdom (Application Nos 30562/04 and 30566/04) (2008) 48 EHRR 50, para 66;
Gillberg v Sweden (Application No 41723/06) (2012) 34 BHRC 247, para 66; and

Bărbulescu v Romania (Application No 61496/08) (2017) 44 BHRC 17, para 70, stated
that:


              “The concept of ‘private life’ is a broad term not susceptible

              to exhaustive definition. It covers the physical and
              psychological integrity of a person. It can therefore embrace
              multiple aspects of the person’s physical and social identity.

              Article 8 protects in addition a right to personal
              development, and the right to establish and develop
              relationships with other human beings and the outside

              world.”


116.   The broad term can also include activities of a professional or business nature.
We consider that publication of information about an official criminal investigation

into a person’s business activities can fall within the concept of “private life”. At para
100 in Denisov the Grand Chamber stated that:



              “… the notion of ‘private life’, as a broad term, does not
              exclude in principle activities of a professional or business
              nature. It is, after all, in the course of their working lives that

              the majority of people have a significant opportunity to
              develop relationships with the outside world (see Niemietz v
              Germany (1992) 16 EHRR 97, para 29; [Volkov v Ukraine

              (Application No 21722/11) (2013) 57 EHRR 1, para 165]; and
              [Bărbulescu v Romania (Application No 61496/08), para 71]).
              Professional life is therefore part of the zone of interaction
              between a person and others which, even in a public context,

              may, under certain circumstances, fall within the scope of
              ‘private life’ (see [Martínez v Spain [GC] (Application No
              56030/07) (2014) 60 EHRR 3, para 110]).”



117.   Bloomberg, whilst accepting that the notion of private life can include activities
of a professional or business nature, argues, in reliance on Fayed v United Kingdom

(Application No 17101/90) (1994) 18 EHRR 393, that the private character of those
activities does not extend to businessmen who are actively involved in the affairs of
large public companies. We will consider this argument in paras 136 to 141 below.





                                           Page 39,118.   The Grand Chamber, in Denisov, also considered, at para 97, whether the notion
of “private life” should cover a right to respect for reputation, which is not expressly

mentioned in article 8. The court cited its decision in Pfeifer v Austria (Application No
12556/03) (2007) 48 EHRR 8, para 35, for the principle that:


              “a person's reputation, even if that person was criticised in

              the context of a public debate, formed part of his or her
              personal identity and psychological integrity and therefore
              also fell within the scope of his or her ‘private life’.”



119.   The Grand Chamber continued, at para 98, by stating that:


              “However, it is important to stress that article 8 cannot be

              relied on in order to complain of a loss of reputation which is
              the foreseeable consequence of one’s own actions, such as,
              for example, the commission of a criminal offence (see

              [Sidabras and Džiautas v Lithuania (Application Nos 55480/00
              and 59330/00) (2004) 42 EHRR 6, para 49], and [Axel Springer
              AG v Germany [GC] (Application No 39954/08) (2012) 55

              EHRR 6, at para 83], 7 February 2012). In [Gillberg v Sweden
              [GC] (Application No 41723/06) (2012) 34 BHRC 247] the
              Grand Chamber did not limit this rule to reputational damage

              and expanded it to a wider principle that any personal, social,
              psychological and economic suffering could be foreseeable
              consequences of the commission of a criminal offence and

              could not therefore be relied on in order to complain that a
              criminal conviction in itself amounted to an interference with
              the right to respect for ‘private life’ ... This extended principle
              should cover not only criminal offences but also other

              misconduct entailing a measure of legal responsibility with
              foreseeable negative effects on ‘private life’.”



120.   In Axel Springer AG v Germany the ECtHR, at para 83, stated “that the right to
protection of reputation is a right which is protected by article 8 of the Convention as
part of the right to respect for private life” but continued by stating that “[i]n order for

article 8 to come into play, however, an attack on a person’s reputation must attain a
certain level of seriousness and in a manner causing prejudice to personal enjoyment
of the right to respect for private life.”





                                           Page 40,121.   We consider that the importance of the decisions in Pfeifer, Denisov and Axel
Springer in relation to the first ground of appeal is the principle that a person’s

reputation falls within the scope of his or her “private life” so that article 8 applies
provided the attack on reputation attains a certain level of seriousness and causes
prejudice to personal enjoyment of the right to respect for private life.



122.   We also consider that the qualification, in para 98 of Denisov, articulates other
circumstances which can be taken into account at stage one in determining whether
the claimant has established a reasonable expectation of privacy in the relevant

information. So that, for instance, a person actually convicted of a criminal offence as
in Gillberg (see paras 33 and 64-68), or investigated and found to be a former KGB
officer as in Sidabras and Džiautas v Lithuania (Application Nos 55480/00 and

59330/00) (2004) 42 EHRR 6 (Sidabras (see para 13) and Džiautas (see para 19)),
cannot complain of the foreseeable consequence of a loss of reputation or of any
personal, social, psychological and economic suffering as a result. We have emphasised

the requirement that the consequence is foreseeable, as for instance, in Sidabras and
Džiautas the ECtHR found, at para 49, that the applicants “could not have envisaged
the consequences that their former KGB employment would entail for them.”



123.   We consider that the reference in Denisov to “other misconduct entailing a
measure of legal responsibility” is again another circumstance which can be taken into
account at stage one in determining whether objectively there is a reasonable

expectation of privacy in the information. However, ordinarily by analogy to the other
examples in para 98 of Denisov, it is misconduct established after authoritative findings
following an official investigation, for instance, such as a finding of medical malpractice

following an official investigation by the General Medical Council or a finding in civil
proceedings that a person has committed fraud. However, we do not consider that
misconduct is confined to a finding at the end of a criminal or other authoritative

process. For instance, other circumstances can extend to the example given by the
judge, at para 124, of “an armed bank-robber who held hostage a number of
customers and employees in a televised three-day siege” whom he considered “could

hardly claim a reasonable expectation of privacy when s/he surrendered and was
arrested.”


124.   The principle that a person’s reputation falls within the scope of his or her

“private life” so that article 8 applies was recognised by Lord Sumption in Khuja at para
21 when he stated that:



              “The protection of reputation is the primary function of the
              law of defamation. But although the ambit of the right of
              privacy is wider, it provides an alternative means of

                                           Page 41,              protecting reputation which is available even when the
              matters published are true.”



125.   We consider that article 8 does encompass a “reputational” dimension which in
the United Kingdom is primarily protected by the tort of defamation. However,
reputational damage attaining a certain level of seriousness and causing prejudice to

personal enjoyment of the right to respect for private life, can also be taken into
account in determining whether information is objectively subject to a reasonable
expectation of privacy in the tort of misuse of private information. It is included in all

the circumstances of the case which should be considered and “the effect on the
claimant” is expressly one of the Murray factors. On this basis, we reject Bloomberg’s
argument at para 74(c) above, and we consider that information may be characterised

as private because it is reputationally damaging provided it attains a certain level of
seriousness and consequentially impacts on the personal enjoyment of the right to
respect for private life.



       (viii) Submission that the courts below applied an incorrect legal test (see para

       74(d) above)




126.   Bloomberg submits that the courts below failed to apply the correct legal test at

stage one which involves consideration of “all the circumstances of the case”.


127.   The application by the courts below of a general rule or legitimate starting point
did not mean that they did not apply the multi-factorial analysis set out in Murray. The

judge, at para 125, approached the issue under the enumerated headings in that case
and Simon LJ considered his approach at paras 70-87. In relation to the Murray factor
of “[t]he effect of the publication on the claimant” the judge accepted that the

publication of the information had a significant adverse impact on the claimant both in
terms of loss of autonomyas well as damage to reputation, but found that it was not a
case in which the consequences of publication had been devastating or life-changing.

The judge considered that the most significant Murray factor was “[t]he circumstances
in which and the purposes for which the information came into the hands of the
publisher.” He gave a number of reasons for that conclusion including the preliminary

and contingent nature of the investigation.


128.   Bloomberg asserts that in applying the multi-factorial analysis the courts below
incorrectly confined the Murray factor of “the nature of the activity in which the

claimant was engaged” to the claimant being the subject of the UKLEB’s investigation.

                                           Page 42,Rather, Bloomberg suggests that the activity should have been identified as “alleged
corruption in relation to X Ltd’s activities in the foreign country.” Bloomberg contends

that once the activity has been correctly identified, the court should then analyse
whether the claimant was engaged in that activity.


129.   In a case such as the present, we do not consider that the nature of the activity

in which the claimant was engaged is a factor of particular significance. It was of
significance on the facts of Murray, but, as already stated, the Murray factors are not
exhaustive and their individual significance, if any, will vary from case to case. This case

concerns information relating to a criminal investigation (see paras 19 and 78 above)
rather than, as in Murray, media intrusion into a person’s activities.



130.   In Murray the claimant, the 19-month-old son of a well-known author, had been
photographed without the knowledge or consent of his parents, whilst being pushed
by his father in a pushchair in a public street, with his mother walking alongside, on
their way to a café. The claimant, through his parents as his litigation friends, claimed

damages against a newspaper publisher and a photography agency alleging a breach of
his right to respect for his privacy under article 8 of the ECHR in that without his
parents' knowledge or consent the agency had taken, retained and supplied, and the

newspaper publisher had published, private and confidential information contained in
the photograph in respect of which he had a reasonable and legitimate expectation of
privacy. The photography agency applied to strike out the claim on the basis that there

could be no reasonable expectation of privacy in respect of the simple activity of
walking down a street. So, a central question on the strike out application was whether
a distinction could be drawn between different types of activities. Patten J held that a

distinction could be drawn between a child, or an adult, engaged in family and sporting
activities and something as simple as a walk down a street or a visit to the grocers to
buy the milk. Patten J considered that the first type of activity was clearly part of a

person's private recreation time intended to be enjoyed in the company of family and
friends and that, on the test deployed in Von Hannover v Germany, publicity of such
activities is intrusive and can adversely affect the exercise of such social activities.

However, Patten J struck out the claim and gave summary judgment, holding that
innocuous conduct in a public place or routine activities such as a simple walk down
the street or a visit to the shops did not attract any reasonable expectation of privacy.

The Court of Appeal allowed the appeal, holding that Patten J was wrong to strike out
the claim on the ground that the claimant had no arguable case that he had a
reasonable expectation of privacy. Sir Anthony Clarke MR, delivering the judgment of

the Court of Appeal stated at para 55, that the members of the court did not agree
“that it is possible to draw a clear distinction in principle between the two kinds of
activity.” He continued by stating that “… an expedition to a café of the kind which
occurred here seems to us to be at least arguably part of each member of the family's



                                           Page 43,recreation time intended to be enjoyed by them and such that publicity of it is
intrusive and such as adversely to affect such activities in the future.”



131.   In Murray, the nature of the activity plainly affected the question as to whether
there was a reasonable expectation of privacy in the relevant information. However,
this case does not turn on identifying the nature of the claimant’s activity, but on the

private nature of the information about the UKLEB’s criminal investigation into his
activities. The private nature of that information is not affected by the specifics of the
activities being investigated.



132.   We are confirmed in that view by the analysis that Bloomberg invites.


133.   The judge at para 125(i)(b) considered that the activity in question was being

subject to the UKLEB’s investigation so that the claimant's reasonable expectation of
privacy was over confidential details of the UKLEB investigation, and in particular the
UKLEB's conclusions as to the claimant's conduct as demonstrated by the evidence it

had obtained. In this way the reasonable expectation of privacy attached to the fruits,
not of Bloomberg’s own investigation (see para 28 above), but of the UKLEB’s ongoing
confidential investigation into the claimant and the views the UKLEB had formed in

that context as to the claimant’s potential culpability.


134.   We accept that a criminal investigation is into an underlying suspected criminal
activity. However, in so far as it is relevant to consider the second enumerated Murray

factor, then in the context of information relating to a criminal investigation, we
consider that the courts below were correct to identify the activity as the criminal
investigation in circumstances where the information which the claimant seeks to

characterise as private are the fruits of that investigation, see paras 19 and 78 above.


135.   For all these reasons we reject Bloomberg’s case that the courts below
materially erred in law in their consideration of the Murray factor of “the nature of the

activity in which the claimant was engaged”.


136.   Bloomberg further asserts that in applying the multi-factorial analysis the courts

below failed to give adequate consideration to the Murray factor of “the attributes of
the claimant.” Bloomberg argues that this factor ought to have led to a recognition
that businessmen actively involved in the affairs of large public companies, such as the

claimant, are not in that sector of their lives private individuals but rather that they
knowingly lay themselves open to close scrutiny of their acts by the media.



                                           Page 44,137.   In Oberschlick v Austria (No 2) (Application No 20834/92) (1997) 25 EHRR 357,
the ECtHR considered the limitation in article 10(2) of the protection of the reputation

of others upon the right to freedom of expression under article 10(1). The ECtHR
considered that the limitation of the protection of reputation of politicians was less
than would be accorded to a private individual. The court observed, at para 29, that:



              “… the limits of acceptable criticism, they are wider with
              regard to a politician acting in his public capacity than in
              relation to a private individual. A politician inevitably and

              knowingly lays himself open to close scrutiny of his every
              word and deed by both journalists and the public at large,
              and he must display a greater degree of tolerance, especially

              when he himself makes public statements that are
              susceptible to criticism. He is certainly entitled to have his
              reputation protected, even when he is not acting in his

              private capacity, but the requirements of that protection
              have to be weighed against the interests of open discussion
              of political issues, since exceptions to freedom of expression

              must be interpreted narrowly …”


138.   Bloomberg asserts that a similar principle applies to businessmen and in this
respect, reliance is placed on the decision of the ECtHR in Fayed v United Kingdom

which concerned an alleged violation of article 6(1) of the ECHR in that the applicants
asserted that they had been denied effective access to a court to determine their civil
rights to honour and reputation. They had been subject to an inspectors’ report which

had arrived at provisional conclusions that they had dishonestly misrepresented their
origins, their wealth, their business interests and their resources at the time of their
takeover of House of Fraser, and that they had lied about these and other topics to the

inspectors and produced a set of documents as evidence that they knew to be false.
Bloomberg relies on para 75 of the judgment of the ECtHR which “recognise[d] that
limitations on access to court may be more extensive when regulation of activities in

the public sphere is at stake than in relation to litigation over the conduct of persons
acting in their private capacity.”


139.   Bloomberg asserts that significantly, the ECtHR continued by stating that:



              “As to enforcement of the right to a good reputation under
              domestic law, the limits of acceptable criticism are wider with

              regard to businessmen actively involved in the affairs of large
              public companies than with regard to private individuals, to
              paraphrase a principle enunciated by the Court in the context

                                           Page 45,              of the State’s power to restrict freedom of expression in
              accordance with article 10(2) of the Convention. Persons,

              such as the applicants, who fall into the former category of
              businessmen inevitably and knowingly lay themselves open
              to close scrutiny of their acts, not only by the press but also

              and above all by bodies representing the public interest.”
              (Emphasis added)


140.   We accept that the status of the claimant as a businessman actively involved in

the affairs of a large public company means that the limits of acceptable criticism of
him are wider than in respect of a private individual. However, that does not mean
that there is no limit, nor does it mean that this circumstance is determinative. We

consider that it is a relevant consideration at stage one in determining whether the
information which has been published or which is to be published can be characterised
as private. However, it is only one factor, and consideration of “the attributes of the

claimant” must be balanced against the effect of publication of the information on
him. The ordinary conclusion in relation to the effect of publication of information that
an individual is under criminal investigation is that damage occurs whatever his

characteristic or status. Indeed, ordinarily we would anticipate greater damage to a
businessperson actively involved in the affairs of a large public company than to a
private individual.



141.   We consider that the status of the claimant was taken into account by both the
judge and by Simon LJ. They noted that the claimant “held a senior position in X Ltd”,
but “was not a director” and “achieved no particular prominence in his role.” The

judge was entitled to identify the most significant Murray factor as being “[t]he
circumstances in which and the purposes for which the information came into the
hands of the publisher” and to place less emphasis on the status of the claimant. We

reject Bloomberg’s argument that the courts below failed to give adequate
consideration to the Murray factor of “the attributes of the claimant”.


142.   It is clear that the information contained an attack on the claimant’s reputation

which attained a level of seriousness sufficient for article 8 of the ECHR to come into
play. However, Bloomberg also argued that inadequate consideration was given by the
courts below as to whether publication of the information undermined personal

integrity as distinct from merely harming reputation. As we have indicated, at para 121
above, for article 8 to come into play the manner of attack on a person’s reputation, in
addition to attaining a certain level of seriousness, must cause prejudice to personal

enjoyment of the right to respect for private life. The judge held at para 155(i) that
publication of the information had “negatively impacted [the claimant’s] dignity and
standing” and “caused [him] significant distress and anger”. He held at para 153, that


                                           Page 46,publication of the information had a “negative impact on [the claimant’s] family life”
(including causing distress to his wife), had “greatly affected his mood and his

sleeping”, caused him “distress and embarrassment” and made him “irritable and
angry.” The judge observed, at para 125(i) that the claimant’s case involved a
complaint about “loss of autonomy” as well as being particularly damaging to the

claimant as an international businessman, and that “[b]oth are dimensions of the
article 8 right”. In light of the judge’s unchallenged acceptance of the claimant’s
evidence about the effect of the publication of the information on his dignity,

autonomy and family life, and Bloomberg’s acceptance of the award of £25,000
damages we reject the argument that there was no prejudice to personal enjoyment of
the right to respect for private life caused by the manner of attack on the claimant’s

reputation.


143.   We reject Bloomberg’s argument at para 74(d) above.


       (ix)   Does a general rule or a legitimate starting point apply in relation to this


       category of information?




144.   A determination as to whether there is a reasonable expectation of privacy in
the relevant information is a fact-specific enquiry which requires the evaluation of all

circumstances in the individual case. Generally, in setting out various factors applicable
to that evaluation, including but not limited to the Murray factors, it is important to
recognise that not all of them will be relevant to every conceivable situation and that

the examination of the factors must be open textured without being given any pre-
ordained weight. However, in respect of certain categories of information, such as the
information in this case, a consideration of all the circumstances and the weight which
must be attached to a particular circumstance will generally result in a determination

that there is a reasonable expectation of privacy in relation to information within that
category. In respect of those categories of information it is appropriate to state that
there is a legitimate starting point that there is an expectation of privacy in relation to

that information. We prefer the terminology of “a legitimate starting point” to
emphasise the fact specific nature of the enquiry and to avoid any suggestion of a legal
presumption, as noted above in para 67. We consider that the courts below were

correct in articulating such a legitimate starting point to the information in this case.
This means that once the claimant has set out and established the circumstances, the
court should commence its analysis by applying the starting point.






                                           Page 47,       (x)    Does the legitimate starting point apply in the present case?




145.   This case clearly falls into the category of information in which the legitimate
starting point applies.



       (xi)   Conclusion in relation to this ground of appeal



146.   The courts below were correct to hold that, as a legitimate starting point, a

person under criminal investigation has, prior to being charged, a reasonable
expectation of privacy in respect of information relating to that investigation and that
in all the circumstances this is a case in which that applies and there is such an

expectation. We would dismiss this ground of appeal.


7.     Issue 2 - Whether the Court of Appeal was wrong to hold that, in a case in


which a claim for breach of confidence was not pursued, the fact that information

published by Bloomberg about a criminal investigation originated from a confidential


law enforcement document rendered the information private and/or undermined


Bloomberg’s ability to rely on the public interest in its disclosure.




147.   The short answer to this ground of appeal is that neither the judge nor the
Court of Appeal held that the fact that the information originated from a confidential
document rendered the information private or meant that Bloomberg could not rely
on the public interest in its disclosure.



148.   It is correct that the judge treated the confidentiality of the information as
being a relevant and important factor at both stage one and stage two but he did not

treat it as being determinative. The Court of Appeal rightly held that such an approach
was justified and involved no error of law.


149.   At stage one, it was common ground that the judge should consider the Murray

factors, so far as applicable, and he did so at para 125. Factor (7) is “the circumstances
in which and the purposes for which the information came into the hands of the

                                           Page 48,publisher”. As the Court of Appeal held, the confidentiality of the Letter of Request
was clearly a relevant circumstance in relation to factor (7) - see the judgment of

Simon LJ at para 92 and that of Underhill LJ at para 148.


150.   The recognition that the causes of action for misuse of private information and
for breach of confidence are distinct means that there is no necessary overlap between

them. Information may be private but not confidential, or confidential but not private.
To prove that information is private it is not necessary to show that it is confidential.
Often, however, confidentiality and privacy will overlap and confidentiality may well be

relevant to whether there is a reasonable expectation of privacy. In particular, if
information is confidential that is likely to support the reasonableness of an
expectation of privacy.



151.   The judge was clearly well aware of the distinction between confidential
information and private information and in the paragraph in which he found the “high-
level of confidentiality” that attached to the Letter of Request to be a “very significant

factor” when considering whether there was a reasonable expectation of privacy, he
specifically made reference to the fact that there was no claim for breach of
confidence (para 125(g)).



152.   At stage two, the judge was right to place reliance on the public interest in the
observance of duties of confidence when carrying out the balancing exercise. As Steyn

J stated in Greystoke v Financial Conduct Authority [2020] EWHC 1011 (QB), in the
context of weighing the competing rights under articles 8 and 10, at para 28:


              “In a case where the information is the subject of a duty of

              confidence, a significant element to be weighed in the
              balance is the important public interest in the observance of
              duties of confidence: see Brevan Howard Asset Management

              LLP v Reuters Ltd[2017] EWCA Civ 950 at paras 62-69.”


153.   That public interest both weakens the justification for interfering with or
restricting the right of privacy and strengthens the justification for interfering with or

restricting the right to freedom of expression. It is also relevant to the proportionality
of such interference or restriction. The method of obtaining the information is also one
of the relevant factors identified in Axel Springer.



154.   In the present case, there was a general public interest in the observance of the
duties of confidence and a specific public interest in maintaining the confidence of the


                                           Page 49,Letter of Request so as not to prejudice the criminal investigation. As was stated in the
Letter of Request, disclosure of its contents “will pose a material risk of prejudice to a

criminal investigation”. As a suspect in the investigation, the claimant also had a
particular interest in avoiding prejudice to, and maintaining the fairness and integrity
of, that investigation.



155.   In such circumstances the Court of Appeal was clearly correct in concluding that
there was no error of law in the judge’s approach. As Simon LJ stated atpara 134:



               “Although there was no claim for breach of confidence, there
               was a substantial andclearly identified public interest in
               maintaining the confidentiality of the LoR and its

               Information. The fact that the UKLEB had not advanced a
               claim in respect of the LoR was material, but so was its
               attitude to Bloomberg’s publication of its contents, as it
               belatedly emerged. This was a factor to be weighed when

               balancing the respective article 8 and article 10 interests, and
               I can see nothing to justify ‘appellate intervention’, to adopt
               Lord Mance’s phrase in PJS v News Group …”



156.   Simon LJ was here referring to the judgment of Lord Mance in PJS v News Group
Newspapers Ltd [2016] UKSC 26; [2016] AC 1081, para 20 in which he stated as follows:



               “The exercise of balancing article 8 and article 10 rights has
               been described as ‘analogous to the exercise of a discretion’:
               AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 at

               [8]). While that is at best only an analogy, the exercise is
               certainly one which, if undertaken on a correct basis, will not
               readily attract appellate intervention.”

















                                            Page 50,8.     Issue 3 - Whether the Court of Appeal was wrong to uphold the findings of


Nicklin J that the claimant had a reasonable expectation of privacy in relation to the

published information complained of, and that the article 8/10 balancing exercise


came down in favour of the claimant.




157.   This ground of appeal is dependent upon Bloomberg establishing that the Court
of Appeal erred in law on Issue 1 and/or Issue 2, which it has not done. If no error of

approach is shown then there are no grounds in this case for interfering with the
judge’s decision in relation to the balancing exercise.



9.     Conclusion



158.   For the reasons given, we would dismiss the appeal.
































                                          Page 51
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