The claimant was a well known entertainer. He became the subject of a police investigation, conducted by the second defendant, in relation to an historic sexual offence. A police search of the claimant’s home took place, which was given immediate and extensive television coverage by the first defendant. The claimant claimed that both the fact of the police investigation and the search of his home were matters in respect of which he had a legitimate expectation of privacy, as against both defendants, guaranteed by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. He claimed damages for the defendants’ violation of that right. The claim against the second defendant reached a settlement. The first defendant continued to defend the claim, whilst accepting that, as against a police force, and prima facie, the subject of an investigation had a reasonable expectation of privacy for the purposes of article 8, but on the basis that the position was not necessarily the same and a fresh inquiry had to be made as to whether there was a reasonable expectation of privacy, taking into account all the circumstances, once the information had moved into the hands of a journalist and the position changed yet again when the investigation moved on to the phase of a search carried out under a search warrant. The first defendant also defended the claim on the basis that even if the claimant’s article 8 right was engaged, it was justified in its broadcasting by virtue of its right to freedom of expression under article 10 of the Convention.
Held, claim allowed. A suspect under a police investigation had a reasonable expectation of privacy in relation to that investigation. It was not an invariable right to privacy which could never be displaced, but a legitimate expectation was the starting point. The search, carried out under a warrant, did not, without more, remove that legitimate expectation. The search was to be treated as part of the investigation. There was also no basis for saying that a reasonable expectation of privacy was somehow removed or required complete reconsideration merely because it moved into the hands of the media. The claimant, accordingly, had a legitimate expectation of privacy both in relation to the investigation and the search of his home and his article 8 right was engaged. On balance, the claimant’s right was not outweighed by the first defendant’s article 10 right. Accordingly, the first defendant was liable for infringement of the claimant’s article 8 right when it broadcast the fact that he was the subject of an investigation for historic sexual abuse and that his property was being searched (paras 248, 255, 257–263, 315, 323).
Justin Rushbrooke QC and Godwin Busuttil (instructed by Simkins llp) for the claimant.
Gavin Millar QC and Aidan Eardley (instructed by BBC Litigation Department) for the first defendant.
Jason Beer QC and Adam Wolanski (instructed by DWF llp) for the second defendant.