At the end of last month, judgment was handed down in the case of WFZ v BBC. The case concerned an injunction sought by the individual referred to in the proceedings as “WFZ” to restrain publication by the BBC of a news report identifying him as the subject of an ongoing criminal investigation into multiple allegations of sexual assault.
According to court documents, the BBC had planned to run a report highlighting the fact that at least a quarter of businesses making up the sector in which WFZ works have been made aware of employees being investigated by the police for serious sexual offences.
Despite this, the BBC says there is a lack of consistency in the approach to dealing with these matters, and no policies or set procedures are in place.
As an individual who has been arrested and is being investigated for several such offences, WFZ was to be identified by the BBC as a “stark illustration of these issues”.
Nothing particularly unusual there?
Well, what if I told you that not only was the injunction sought on the grounds of privacy, but also to protect against the risk of contempt concerning any future court proceedings that may arise?
Concerns over contempt in a criminal trial are common, but arrested individuals seeking injunctive relief restraining publication is decidedly less so.
In her reasoning, Collins Rice J acknowledged this, citing the case of A-G v BBC  where it was acknowledged that the Court should not award injunctions in cases such as this “except in a clear case where there would manifestly be a contempt of court for the publication to take place”.
With this in mind, the Judge considered whether she could “be sure that…naming the Claimant [WFZ] in connection with his arrest…is a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.
She continued “My answer is that I can and I must. This is a clear case….The risk that the course of justice in the criminal proceedings will be seriously impeded or prejudiced is substantial and manifest.”
On this basis, it was determined that publication in the form suggested by the BBC, which identified WFZ as the subject of the criminal investigation, could not be permitted on the basis that it would amount to a contempt of court.
Elaborating on the point, the Judge explained that “on the facts I have before me, the press’s freedom to publish and public’s ‘right to know’ are definitively outweighed by the powerful public interest in criminal justice, not least where very serious charges may be brought, and not least in the interest of obtaining justice for complainants if they are. That, as well as a suspect’s interests, is the public interest specifically protected by the Contempt of Court Act.”
It was further held that had WFZ not been successful in obtaining the injunction on the grounds of contempt, he would have been able to satisfy the court that publication would have amounted to a misuse of private information.
Though the BBC argued that where allegations relate to sexual offences, there should be “no privacy in wrongdoing”, the Judge instead held that given the likely destruction of the claimant’s “human autonomy, reputation and prospects for justice”, he had a reasonable expectation of privacy.
It was acknowledged that this represented a derogation from the general principle of open justice but in all the circumstances of this case, Collins-Rice J considered that the freedom of the press was “properly abridged”.
Though a definite expansion of the scope of the existing precedent, the Judge was clear that this case is unique. Accordingly, editors need not fear a sudden wave of contempt related injunctions just yet.
The BBC is reportedly considering their position, so we may yet see this case come before the Court of Appeal. But an appeal carries its own risks, so there can be no certainty that an attempt will be made to overturn this High Court judgment.
It would be fascinating to be able to eavesdrop on those deliberations, but as we all know, patience is a virtue.
But whether there is an appeal or not, what the decision in WFZ shows is that the trend of giving anonymity to those being investigated by the police, continues apace.
It’s all rather worrying.