ZXC v Bloomberg LP: mission creep and open justice

Almost two months have passed since the Supreme Court’s judgment in ZXC v Bloomberg LP [2022] UKSC 5, [2022] 2 WLR 424.  The Supreme Court, upholding the judgments of the courts below, held unanimously that “as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation” [146].

The judgment has given rise to concern that the media’s role as public watchdog has been unduly fettered.  This inevitably arises at the early stages of a criminal investigation: the main concern is that the media are no longer able to report freely on those early stages, given the judicial recognition of a general privacy right for anyone arrested or investigated.  However, there is also anecdotal evidence of attempts to use ZXC to restrict reporting of hearings in open court.

A tweet from London Evening Standard reporter Tristan Kirk on 4th March is instructive. He reports that during a hearing in open court regarding the freezing of a Russian businessman’s assets, his lawyer “chose to mention ‘court authorities on those who are subject of investigation, not charged with an offence, & that being reported on in the press’.” He points out that, although no reporting restriction was sought, “the comment was deliberate & could have led less-experienced reporters into thinking they couldn't report what had been said.”

Of course, that attempt is misconceived; Lord Sumption’s judgment in Khuja v Times Newspapers Limited [2017] UKSC 49, [2019] AC 161 is clear that once the information is disclosed in open court, there can be no reasonable expectation of privacy (“REP”) in respect of it.  It can therefore be reported, unless a reporting restriction applies (imposed by statute or judicial order).  However, Khuja does not deal with the prior issue of whether or to what extent ZXC and its “starting point” of a REP can be invoked as a basis for withholding the information from open court in the first place.

So far as concerns a criminal defendant, the short answer is that the starting point in ZXC generally only applies to the point of charge.  This was common ground before the Supreme Court, which stated that: “if someone is charged with a criminal offence there can be no reasonable expectation of privacy. We consider, generally, that to be a rational boundary, as the open justice principle in a free country is fundamental to securing public confidence in the administration of justice... Consequently, whenever a person is charged with a criminal offence the open justice principle generally means that the information is of an essentially public nature so that there can be no reasonable expectation of privacy in relation to it” [77]. By the time a defendant appears in court, that point has long passed.  But what of a situation in which third parties are named in court documents as being suspected of criminal wrongdoing?

That issue arose in the context of a recent application by West Midlands Police (“WMP”) for a production order under the Terrorism Act 2000 against journalist and former MP Christopher Mullin.  WMP sought material in Mr Mullin’s possession that would confirm the identity of the “Young Planter,” a confidential journalistic source who had admitted his involvement in the infamous 1974 Birmingham pub bombings in an interview with Mr Mullin.  In a judgment handed down last month, HHJ Lucraft QC dismissed the application.

The facts of the case were somewhat unusual, in that WMP were confident that they already knew the Young Planter’s true identity (see judgment at [39]), although Mr Mullin had never confirmed it.  Relying on ZXC, WMP raised concerns about disclosure of the Young Planter’s name in open court as a suspect in connection with the bombing.  Mr Mullin took a neutral stance on the issue.  For the hearing, the Young Planter was referred to as “AB,” and another individual in respect of whom concerns were raised was referred to as “CD.”  The Judge imposed a “precautionary” order under s.11 Contempt of Court Act 1981, which he intended to review at the end of the proceedings.  Ultimately, the Judge lifted the order in respect of both individuals upon handing down his judgment: see [4]-[6].

(It is worth noting that this approach did give rise to a practical difficulty for the media: once the order was lifted, they were no longer prevented from naming the Young Planter, but his name had not been used in open court during the hearing.  Here, the media knew the name from other sources, but that will not always be the case).

In his judgment at [6], which maintained the ciphers, the Judge noted that AB had been “widely identified in the national media as a critical suspect” in connection with the bombings, as well as in an inquest into the matter in 2019.  It seems likely that, given this exposure, any starting point of a REP would have been displaced quickly in any event.  However, the broader question is whether such a starting point should have any place in an application for a derogation from the fundamental principle of open justice.  It is well-established that the obligation on those seeking a derogation is to establish its necessity on the basis of clear and cogent evidence. It is difficult to see how this obligation could be discharged where an individual is permitted to rely on a starting point in favour of privacy. 

Open justice considerations did not arise in the context of ZXC.  Accordingly, none of the courts hearing the case were required to turn their minds to that issue, save to acknowledge that open justice considerations were a reason why a REP should not generally continue to exist post-charge.  The effect of ZXC should be confined to its narrow factual circumstances, and any attempted “mission creep” should be firmly deprecated.

Claire Overman is a member of the media and information team at Doughty Street Chambers.  She acted for the five media organisations who successfully challenged the s.11 order in the Christopher Mullin case.