The BBC will not formally appeal a High Court privacy ruling made against it for revealing a police investigation into singer Sir Cliff Richard in an afternoon news bulletin.
However the corporation has said it will write to the Government to ask for a review of the law around the reporting of criminal investigations and the naming of those under investigation.
- September 21, 2021
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No-one at the BBC is to be fired over coverage of a police raid on Sir Cliff’s Berkshire home in August 2014, which included footage shot from a helicopter of officers entering the house, according to a spokesperson.
The two-month trial has already cost the BBC about £1.9m, including £210,000 in damages and an agreement to cover Sir Cliff’s court costs.
In a statement today the BBC said legal advice it had received on the prospects of a successful appeal was “not promising” and that the legalities were “complex”.
The corporation said it believed the judge had “erred in law” in finding that broadcasters and journalists normally have no right to name someone under criminal investigation, but that it was difficult to isolate this principle from the ruling.
“At best, an appeal could recognise that the judge made an error of law on the important issue of the media being able to name suspects, but is unlikely to overturn his overall decision given all the other factual findings made against the BBC,” it said.
“This would still leave much uncertainty about what the media can legitimately report. At worst, the Court of Appeal could endorse the findings of the trial judge.”
The BBC said appealing would “inevitably mean an expensive legal cul de sac and one that would simply prolong Sir Cliff’s distress”.
It said: “Instead the BBC is writing today to ask the Government to consider a review of the law in this important area to protect the right to properly and fairly report criminal investigations, and to name the person under investigation.
“There is a fundamental principle of press freedom at stake here and one upon which we believe Parliament, as our lawmakers, should decide.”
BBC director general Tony Hall said in an email to staff following today’s announcement that it was not in the public’s interest for the corporation to mount a challenge against the ruling.
He reiterated concerns that the principle of whether someone under police investigation could be named by the media was “very hard to isolate” from the judgement.
He said: “So an appeal, which will be costly, may well not succeed in providing clearer guidance from the higher courts on the principle.”
Hall revealed the BBC tried hard to explore a settlement with Sir Cliff before the case went to court, but that it could only have been reached if it the corporation conceded that it was unlawful to have identified Sir Cliff in its reports.
“We couldn’t do that,” he said. “It goes against a fundamental principle – namely that the media should be able to identify subjects of police investigations, independently of the police, when they consider it to be in the public interest to do so.
“That’s a fundamental tenet of journalism and it felt to us then, and still does today, that it’s a principle we have to stand up for.”
He said the BBC remained “very concerned” about the judge’s ruling, which Mr Justice Mann himself acknowledged was “capable of having a significant impact on press reporting”.
National Union of Journalists general secretary Michelle Stanistreet, said: “This judgement poses a significant threat to journalists’ ability to report on criminal trials in future.
“It is disappointing that there will be no formal appeal. However, in the light of the legal advice and financial constraints our public service broadcaster is under following the last woeful licence fee settlement, the BBC’s decision is an understandable one.
“This is an issue of broader concern to all who care about journalism and the ability of journalists to do their jobs well. The NUJ therefore welcomes the call for an urgent review and clarification of the law in light of this judgement.”
The BBC has already sent its letter asking for a review to the Attorney General and the Department for Culture, Media and Sport.
A spokesperson said it considered a review to be the best approach, even if its appeal costs were met by another party.
The police investigation into Sir Cliff related to an historical allegation of child sex abuse. He was never arrested or charged and the case was later dropped.
A recent Yougov poll of of more than 1,600 UK adults found only one in 20 (5 per cent) believed the media should be able to name someone who is under investigation by police but has not yet been arrested or charged, as in the case of Sir Cliff.
The BBC statement in full:
The BBC is already on record in saying that we are sorry for the distress that Sir Cliff has been through. We say so again today. We fully appreciate the impact this has had on him. There are lessons for the BBC in how we reported this story and we will think very carefully about our approach in the future – both in tone and style. We recognise there are things we got wrong – even if all the facts we reported were right.
Despite this, the judgment creates new case law and represents a dramatic shift against press freedom. In his ruling, the judge himself stated “the case is capable of having a significant impact on press reporting”. It raises significant questions over how the media can report investigations in the future – and creates huge uncertainty over what might qualify as being in the public interest.
We accept the BBC and the rest of the media have a duty to be sensitive to the rights and position of those who are under investigation, and in some cases there will be little public interest in naming individuals. However, this ruling will limit the long-standing ability of journalists to report on police investigations – many cases of which have resulted in further complainants coming forward. It will make it harder to scrutinise the conduct of the police and it will undermine the principle of the public’s right to know. These concerns have been widely echoed by many other media organisations.
With these significant principles at stake, the BBC has taken legal advice from very experienced counsel on the prospects of a successful appeal. The advice we have received is not promising. The legalities are complex, but essentially even though we are advised and believe that the judge erred in law in finding that broadcasters and journalists normally have no right to publish the name of a person who is the subject of a criminal investigation, it will be very difficult to persuade the Court of Appeal to isolate this issue of principle from the judge’s broader findings in this case. The judgment has been written in a way that makes the two indivisible.
At best, an appeal could recognise that the judge made an error of law on the important issue of the media being able to name suspects, but is unlikely to overturn his overall decision given all the other factual findings made against the BBC. This would still leave much uncertainty about what the media can legitimately report. At worst, the Court of Appeal could endorse the findings of the trial judge.
Given this advice the BBC will not be appealing. It would inevitably mean an expensive legal cul de sac and one that would simply prolong Sir Cliff’s distress. Instead the BBC is writing today to ask the Government to consider a review of the law in this important area to protect the right to properly and fairly report criminal investigations, and to name the person under investigation. There is a fundamental principle of press freedom at stake here and one upon which we believe Parliament, as our lawmakers, should decide.
Picture: Victoria Jones/PA Wire