Pre-charge disclosures, contempt of court, privacy and free speech

Following the Supreme Court decision in Bloomberg LP v ZXC, a person under criminal investigation has, prior to being charged with any offence, a reasonable expectation of privacy in respect of information relating to that investigation. Thus, as a starting point at least, the revelation of those details will be a breach of an individual’s expectation of privacy, as protected by the tort of misuse of private information and by Article 8 of the European Convention (as given effect to under the Human Rights Act 1998). That will be the case unless such disclosure can justified by the particular circumstances of the case, or later in the full trial by employing a public interest defence to outweigh that initial expectation of privacy.
The High Court used the principle in Bloomberg in a recent decision where it granted an interim injunction restraining the BBC from publishing the identity of a high-profile man, who had been arrested in connection with sexual offences but who had not at that point been charged. In that case the court used the rules of contempt of court, rather than (or in addition to) the law of misuse of private information, and found that the press's freedom to publish and the public's ‘right to know’ of the arrest were outweighed by the powerful public interest in the criminal justice proceedings not being impeded or prejudiced.