Last week Mr Justice Mann ruled that the BBC had no grounds for an appeal against his earlier High Court judgment in the Cliff Richard case. The BBC also accepted that it must now pay an estimated £1.3million in damages and costs (of Sir Cliff Richard and South Yorkshire Police).
That figure may well rise substantially after the judge has assessed the costs aspects of the case further.
Is that the end of the matter? This is the BBC and so of course it is not. The central point here is that the Corporation can never, ever admit that it is wrong. In the obdurate pursuit of its self-rectitude, nothing can stand in its way.
And so, despite huge and still-increasing bills, senior BBC executives are now saying that an important issue of press freedom is at stake, and they are considering going to the Appeal Court. Under the rules, they have three weeks in which to decide whether or not to do so.
Some newspapers have joined in this refrain about press freedom and the need to pursue the matter (and thus Sir Cliff) further. Stephen Glover of the Daily Mail – normally, of course, a staunch critic of the Corporation – is among them. He appeared on BBC Radio 4’s Today programme last Thursday to push his fears. He declared:
‘If the judge’s precedent is allowed to stand, there is a danger that suspects cannot be named by (media outlets) . . . and that the police could, for example, raid somebody’s house, a suspect’s house in the middle of the night and put somebody on police bail and the local media wouldn’t be able to report that . . . people might live in a state of fear or intimidation from the police. I mean, what we’re talking here about, I think is, in essence, open justice. And this is a long-established tradition, that media organisations do feel free to name suspects in certain circumstances. And if that is taken away, then the freedom of the press is certainly threatened.’
His observations were followed on Saturday by a Daily Mail editorial which claimed that Mr Justice Mann’s judgment meant that that only in ‘exceptional circumstances’ could the names of those arrested or suspected of committing an offence now be published. As such, the ruling ‘drove a coach and horses’ through the public’s right to know. In turn, this could allow ‘the police, the rich and powerful and the crooked’ to avoid public scrutiny.
The editorial accepted that people have a ‘reasonable expectation of privacy’, but added ‘that cannot mean people arresting innocent people in the dead of the night or ransacking their homes under a shroud of secrecy’. It opined that the Corporation thus has no alternative but to pursue the case.
The tragedy here is that the Mail and Stephen Glover have been pulled into an imaginary quagmire confected by the BBC in its bull-headed self-defence.
In fact, Mr Justice Mann did not say in his judgment at any point that in future suspects could not be named except in ‘exceptional circumstances’. All the Daily Mail’s fears are thus invalid. His analysis does contain a very stimulating and lucid discussion on this topic, based on case law stemming from judgments relevant to the battle in the Human Rights Act between Section 8 rights to privacy and Section 10 rights describing press freedom.
His Lordship points out in paragraph 234 of the judgment that an earlier judicial ruling about privacy (involving The Times) had raised that possibility of a blanket exceptional circumstances restriction but had not determined its validity as a principle.
But in paragraph 237, he states: ‘I respectfully agree (with the finding in an earlier case) . . . that whether or not there is a reasonable expectation of privacy in a police investigation is a fact-sensitive question and is not capable of a universal answer one way or the other.’
In other words, contrary to what Stephen Glover and the Daily Mail have argued, there is not in the judgment a blanket restriction of naming suspects. It is rather that – as was evident before the Cliff Richard case – the Human Rights Act stipulates that an individual’s rights to privacy must be taken into account, and must be overridden only if the reasons for doing so are in the public interest and the evidence in a case is strong.
There is not, and never has been, in English law, a ‘right’ for the media to name suspects in criminal investigations. It must be done only with great care.
And that is what Mr Justice Mann’s analysis considers meticulously. He makes it clear that, balancing all the facts presented to him, South Yorkshire Police were unwisely pushed into allowing the BBC to televise their raid of Sir Cliff’s home, largely because Dan Johnson (the reporter involved) had seriously misrepresented the strength of the information he had gathered from unnamed sources about the raid. The serious breach in Sir Cliff’s privacy happened because of a degree of police ineptitude and naivety, but most of all, because in the avid pursuit of a scoop, the BBC bulldozed anything that got in their way.
This dissection of Mr Justice Mann’s judgment is inevitably to some extent repetitious. But it is of deep concern that both the BBC – and more disappointingly, the Daily Mail – are continuing to project this as a battle of ‘freedom’. It is not and never was. The BBC went for Sir Cliff with all guns blazing and invaded his privacy in a most appalling way.
A truly responsible journalistic organisation would now be absorbing the lessons learned and ensuring that in future it acted correctly, ethically and within the law of the land. But this is the never-wrong BBC, and that, for it, would be like climbing Everest.