Most readers will have heard of the ZXC and Cliff Richard cases in recent years, and be aware that a suspect has the right to privacy from the moment of arrest until they are charged.
A recent breach of privacy case, involving a man arrested and released without charge in relation to the Manchester Arena bombing, has reiterated the shift of emphasis in recent years. He was awarded £83,000 in damages (plus legal costs), and the judgment provides some interesting and rather important points to note.
When the Manchester Arena bombing took place on 22 May 2017, there was a mammoth police investigation which involved multiple arrests all over the country. One of those arrests was of a 23 year-old Libyan man in Shoreham, called Alaedeen Sicri. He was arrested because telephone records showed that the suicide bomber, Salman Abedi, had telephoned Sicri prior to the attack. Sicri was a trainee pilot, and also ran an online marketplace business for Libyans. The two men did not know each other but Abedi had called Sicri to ask him to exchange some Libyan currency through that business, a request that Sicri refused.
Sicri was held by police and questioned for several days and was then released without charge or any further action.
Whilst Sicri was in custody, the police released a statement giving details of the arrest, but as has become common practice, the police did not name the suspect. However, Mail Online discovered his details and named him online the same day. At this point, no other publication had named the arrested man.
Mr. Sicri duly sued and the judgment in Sicri v Associated Newspapers Limited leaves no doubt that those who are being investigated, or have been arrested, now have a right to privacy right up until they are charged with an offence. The only way to overcome this right to privacy is if it is overridden by the public interest. However, the case law makes it clear that there is a high bar to achieve that in circumstances such as these.
One very good reason why the judgment in Sicri is worth reading is that it includes transcripts of the cross-examinations of several of the journalists who were involved in the decision to publish his name. They were pressed on why the suspect was named despite current Police Media Guidelines, and on their decision-making process in deciding to name Sicri.
Mr Justice Warby also asked whether there was any point in the day of the arrest, as the story was evolving, when the journalists devoted their attention specifically to whether the arrested person should be named, either alone or in a meeting, and whether any notes were made.
If you want to see just how probing cross examination can be, these transcripts are a good place to start. They provide a good indication to journalists of the kind of hostile questions they can expect to face should they ever find themselves in a similar situation.
In the final paragraph of his judgment, Mr Justice Warby said this:
“The claimant had a right to expect that the defendant would not publish his identity as the 23-year-old man arrested on suspicion of involvement in the Manchester Arena bombing. By 12:47 on 29 May 2017, the defendant had violated that right; it had no, or no sufficient public interest justification for identifying the claimant. It continued to do so. Later, another publisher did the same or similar. But the claimant’s right to have the defendant respect his privacy was not defeated or significantly weakened by the fact that others failed to do so. He is entitled to compensation. The appropriate sum is £83,000 in general and special damages.”
The point that Sicri’s right to privacy in respect of the ongoing publication of his name had not been significantly weakened by the fact that other publishers also went on to breach that right to privacy by naming him, is a key one.
So remember: when it comes to identifying arrested persons there is no safety in numbers; the naming does not become safe legally just because others follow suit; and there is a high threshold to meet in order to show that the public interest in naming the suspect should prevail.
Happy New Year!