Mr Justice Mann’s reasons for not allowing the BBC appeal against his judgment in the Sir Cliff Richard case are now available. The BBC’s claim was that the High Court judge had issued a blanket ruling which threatened press freedom and public safety by not allowing them in future to name suspects in criminal cases. Others in the press, such as Stephen Glover of the Daily Mail, supported the BBC and urged the appeal, raising the question of whether they had read the verdict properly.
Mr Justice Mann’s reasons for dismissing the argument – also outlined in the basis of his original judgment to be found on TCW here – state that this is absolutely not true. What he says is this:
I do, however, also deal with another aspect of this case in light of the considerable public interest it has attracted. In para.28 of his skeleton argument, as I have already pointed out, Mr Millar (Gavin Millar QC, leading the BBC legal team) suggested that there was a ‘compelling reason for the appeal’ without actually identifying one. I asked for clarification as to whether he was in any way adopting or relying on the widely expressed fears of the media that my judgment had somehow imposed a new bar on press reporting, or prevented the naming of any suspects in police investigations. He did not quite adopt that as a separate ground but my having raised it he did raise the chilling effect of my judgment as a basis for the appeal and something which, he said, amounted to a compelling reason for it.
16. In the light of that I should say something about it. I do not accept that properly read my judgment should have the striking effect contended for by some. It has been suggested that my judgment is remarkable in imposing a new blanket restraint on the reporting of the subject of a criminal investigations, although it is fair to Mr Millar to say that he himself did not go quite that far in his expression, though his case was related to it. That is an erroneous reading of my judgment.
17. My judgment acknowledges that the reasonable expectation of privacy in the fact of an investigation is a presumption or starting point that can give way to countervailing factors; the safety of the public is one example. The desirability of flushing out potential witnesses or more potential complainants is another, as the judgment itself acknowledges. (See para.252 and probably para.221) The door is not closed to other potential reasons for displacing the presumption. Even if the right survives at that stage of the argument, the press can still involve its Art.10 rights including any public interest factors which it considers to operate, and the balancing exercise then takes place. So it is simply wrong to suggest that there is now some blanket restriction on reporting investigations.
18. Of course judgments have to be made and they may not always be easy. But it would be wrong to present my judgment as having any effect other than that just described. Accordingly I do not accept that there is some sort of wide effect of my judgment which provides some other compelling reason for an appeal and, insofar as relevant, I reject any application for permission to appeal on that basis too.
Alarm over press freedom, then, was a fiction of the BBC’s own creation. Yet despite this the BBC denied reports at the weekend that they have abandoned the idea of going to the Court of Appeal. That means they are still hoping to overturn Mr Justice Mann’s ruling. If so, what does it take for them to admit they are wrong?