On 4 November, Mr Justice Nicol handed down an anonymised judgment in ERY v Associated Newspapers Limited. It focuses on two important issues. First, the necessary likelihood of the matters sought to be restrained by an injunction. Second, the extent to which police investigations into individuals give rise to a reasonable expectation of privacy and thus the reporting of them subject to legal restraint.
The judgment continued an injunction granted by Mr Justice Dove on the evening of Saturday 15 October 2016 that prevented the publication by Associated Newspapers Limited (the publisher of the Daily Mail, Mail on Sunday and Mail Online) of any information regarding a police investigation into the claimant.
The background to the case was that the claimant’s company (“Company A”) was in a business arrangement with another Company (“Company B”). Earlier this year the police raided the premises of both Company A and Company B in connection with allegations of financial crimes. A number of people were arrested during these raids and the defendant published articles regarding the investigation. The police later informed the claimant’s solicitors that they wished to interview the claimant under caution. The claimant’s solicitors were assured that the claimant’s involvement in the investigation would remain confidential and a voluntary interview under caution was carried out at a police station.
On 15 October 2016, a journalist from the Mail on Sunday contacted the claimant’s PR representative and indicated that the paper proposed to report the fact that Company A was involved in the police investigation and that the claimant had been interviewed under caution. The defendant later indicated that to avoid the injunction going ahead, it was prepared to publish an article that did not mention that the claimant had been interviewed under caution. This was not adequate for the claimant and a telephone hearing was arranged for that evening at which the injunction was granted with a short return date.
At the return date hearing on 20 and 21 October, the defendant accepted that the interview under caution was a matter that engaged the claimant’s rights under Article 8 and that there was “no sustainable argument” as things stood as to why the defendant’s Article 10 rights should prevail. However, the defendant through its counsel, Andrew Caldecott QC, stated that there was no intention to publish the fact of the interview and provided an assurance that it would provide at least 24 hours’ notice to the claimant if that were to change.
The claimant’s counsel, David Sherborne, said that this was insufficient since a breach of the assurance had no significant legal consequence (unlike a breach of an injunction, a breach of the assurance would not constitute a contempt of court) and referring to the approach of Mr Justice Dingemans in Weller v Associated Newspapers Ltd  EWHC 2127 (QB). Mr Justice Nicol did not accept this, noting that it was unlikely that the newspaper would resile from its assurance and considered that 24 hours’ notice was adequate.
However, the judge considered that there was a sufficient risk that the newspaper would publish material suggesting that the claimant was the subject of an investigation by the police and he considered that there was a reasonable expectation of privacy on the part of the claimant in this information.
Accordingly Mr Justice Nicol agreed to grant the injunction sought (with one minor amendment to the terms of Mr Justice Dove to enable the defendant to “use” the information for the purposes of its own investigations into the claimant’s alleged financial crimes). The terms of the injunction do not extend to the publication of information regarding the police’s investigation into Company A, and Mr Justice Nicol emphasized that the paper would not be “expressly prohibited” from reporting this. Nevertheless, the close relationship between the claimant and the company means that this piece would be difficult to do without infringing the terms of the order.
As the judgment was granted in fact-specific circumstances and the police investigation is ongoing, the defendant was also granted liberty to apply for the order to be discharged or varied on 24 hours’ notice to the claimant. However, the judged warned that “any such application would not have any prospect of success unless there ha[d] been a significant change of circumstances“.
There has been much discussion in recent years as to whether the arrest of an individual will usually give rise to a reasonable expectation of privacy. In this case, the injunction went beyond the question of any arrest (there was no arrest in this case) or questioning by the police, and held that even the fact that the police were investigating the claimant was potentially private. That casts the net pretty broadly.
This is the first time that such a wide injunction has been granted regarding a police investigation into an individual and this claimant-friendly decision is likely to have a far-reaching impact on how the press reports police investigations. The Mail on Sunday has described the judgment as an “alarming restriction on press freedom follow[ing] a series of cases in which rich, famous and powerful figures have used privacy arguments to avoid stories from harming their reputations” and, given the importance of the issues decided in the case, it is likely to be appealed.