Fintan Canavan

The decision to award Sir Cliff Richard a significant sum for a breach of his right to privacy comes at a time when issues of false allegations and the way sexual assault cases should be investigated and prosecuted is to the fore.

In the aftermath of the privacy breaches at Facebook and concerns about the storage and use or misuse of information and the “right to be forgotten” this marks a significant point in the relationship between the internet, social media and normal media with the general public. Even high-profile figures who could be said to court attention may have a sustainable expectation of a degree of privacy.

Those in the media arena see the result as having a chilling effect on the right to freedom of expression and in particular the impact the ruling could have on investigative journalism and crime reporting in particular.

What is the right balance to be struck? The recent judgment concluded that ‘a suspect has a reasonable expectation of privacy in relation to a police investigation’.

The decision to cease the investigations into the allegations made by “Nick” and the decision to prosecute him highlight the reverse situation. Extensive media reporting of allegations “in the public interest” caused untold damage to those against whom the allegations were made and their family and friends.

Reputations were irreparably tarnished with some of those against whom allegations were made dying before the allegations were dismissed by the authorities.

Extensive media reporting of offences during the course of investigations and the trial itself may contribute positively or negatively to the process. It may encourage witnesses or victims to come forward as they feel they may now be believed but may also dissuade witnesses or victims who fear identification and the embarrassment of revelation of their trauma to friends and family.

Following a recent high-profile rape trial in which four men including Ulster and Ireland rugby players Paddy Jackson and Stuart Olding were acquitted of rape, there has been much debate in Northern Ireland about how allegations of rape or other serious sexual offences are prosecuted.

As a direct result of the trial, the media and social media coverage, and the fallout from that trial retired Lord Justice of Appeal Sir John Gillen has been appointed to conduct a review of the process and to make recommendations on how the complex and sensitive issues of sexual offences can be properly investigated and prosecuted. He is to report back in early 2019.

Sir John will be assisted by a panel of eleven people from various disciplines and groups and will look at issues as wide as the use of social media where a victim’s anonymity is breached with ease, the process of interviews and use of victim advocates in trials to address the perception that the victim is unrepresented while the accused have access to their own legal team.

The use of social media in identifying the complainant in the trial and comment on social media during and after the trial was a major concern. This arose during submissions in the trial itself and has been raised following the acquittals. Another issue, which may be influenced by the Sir Cliff Richard decision, is the consideration of anonymity to an accused person prior to conviction.

While this has been triggered by a recent case there are implications for much wider matters including more historic matters. In fact, the difficulties in investigating older cases are more significant than more recent cases where scientific evidence can be more easily secured. “Nick” and his allegations highlight that.

Our contempt laws provide some protection to individuals once charged, it’s the right to privacy for those under investigation in all but the most extreme cases that is concerning lawyers.

Fintan Canavan is a partner at BLM