Identifying An Individual In Publication Between Arrest & Conviction

In respect of criminal proceedings, there has been a news industry-standard approach not to publish the identity of an individual subject to criminal investigation prior to that individual being charged. That, however, was not a rule of law. Whether a news outlet is able to do so in law has come before the Court for the first time in WFZ v British Broadcasting Corp.

WFZ v British Broadcasting Corp [2023]

Case background

This case involved the BBC wishing to publish the name of a very well-known individual, both nationally and internationally, in respect of accusations made against that individual of serious sexual offences. At the time that the BBC wished to publish the article, the individual had been arrested but not formally charged in respect of two allegations. A third allegation had been dropped by the Police on the basis of not enough evidence being available.

The accused individual, in response to a Right to Reply letter sent to him in advance of the article being published, sought an injunction restraining the publication of his name. The Court therefore had to consider the two-stage test set out in the case of Campbell v MGN in respect of misuse of private information (discussed further in our previous blog).

Given that the underlying case was a serious criminal case, there were additional factors for the Court to consider, including:

The Honourable Mrs Justice Collins Rice found in emphatic terms that publication of the article would amount to a substantial risk of perversion of the course of justice and/or the individual’s right to a fair trial being prejudiced, as, amongst other things, the publication is likely to lead to a media and social media frenzy with unfettered comments online and widespread coverage. The Judge found that this would invariably lead to genuine witnesses being deterred from giving evidence, jury members having preconceived mindsets, and non-genuine complainants making unsubstantiated accusations. The Judge therefore granted the injunction restraining the publication.

Comment

This is a first of a kind in terms of the Court’s consideration of whether to grant an injunction restraining publication of an individual’s identity after arrest but prior to charge. Whilst the Claimant was successful in obtaining an injunction, this is not binding on future Courts as all applications such as this are very fact-specific. There is therefore no guarantee that future applications will be determined in the same way.