An expectation of privacy in a spent conviction? XKF provides some practical guidance

In the case of XKF v BBC [2018] EWHC 1560 (QB), Mrs Justice Elisabeth Laing granted a privacy injunction to a former police officer, anonymised in these proceedings as XKF, to prevent the BBC from broadcasting film footage of him recorded at or near his home on 13 March 2018.

Facts

In July 2003, XKF was convicted of a series of offences, including conspiracy to steal £160,000 from the Police (his former employer) and was sentenced to four years’ imprisonment.   As a result of XKF’s convictions, the Court of Appeal was asked to consider whether XKF’s involvement as am investigating officer in a case in which two individuals had been found guilty of conspiracy to obtain property by deception meant their convictions were unsafe.  The nub of the Appellants’ appeal was that they had been set up by a woman called Joanne Fletcher, the ex-girlfriend of one Appellant, who successfully managed to corruptly influence XKF.  The Court of Appeal found in favour of the Appellants, thereby rendering the convictions unsafe, for the following reasons:-

"We believe that the evidence of the criminal activity of [XKF] subsequent to the trial involving these appellants should realistically be seen in context as part and parcel of a continuing course of conduct by [XKF] to impress Fletcher and to foster their continuing relationship. There is, in addition, evidence of his direct dishonesty in connection with property said to be the proceeds of dishonesty by the appellant.”

XKF had also been involved with an investigation which led to the conviction of Mr Kevin Lane for murder in 1996. Mr Lane sought the help of the Criminal Cases Review Commission ('the CCRC'), who interviewed XKF twice. More than 15 years after his conviction, Mr Lane applied to the Court of Appeal for permission to appeal, which was ultimately unsuccessful. Mr Lane’s application focused on XKF’s alleged misbehaviour during the investigation and trial preparation, which he claimed called into question the proper conduct of the trial. The Court of Appeal concluded that Mr Lane’s submissions were largely speculative and that the safety of the conviction was not in doubt.

Since leaving prison XKF changed his name, moved to a new area, obtained qualifications in photography, and had been in a supervisory role with the same employer for five years.  XKF’s conviction became ‘spent’ under the Rehabilitation of Offenders Act 1974 (‘1974 Act’) in 2014.

The BBC intended to broadcast an episode of Panorama on what it regarded as the failings of the CCRC.  As part of the broadcast, the BBC intended to feature Mr Lane’s case. On 13 March 2018, a BBC reporter attended XKF’s new home address to ‘doorstep’ him without prior approach in order to ask questions about Mr Lane’s allegation that XKF set him up. The BBC intended to broadcast passages from the resulting interview which took place near XKF’s home. XKF applied to restrain the publication of this information.

The Law

The relevant law is summarised succinctly by the Judge at paragraphs 5 – 16 of her judgment.   In even briefer terms, to succeed with his application for an interim injunction under the tort of misuse of private information, XKF needed to show that it was more likely than not that at trial he would be able to demonstrate that he had a reasonable expectation of privacy in respect of the information he sought to protect, and that, if he could establish such an expectation, it justified an interference with the BBC’s right to freedom of expression.

It is generally accepted that a conviction can form part of an individual’s private life.  The point at which it does so is normally (but not always) when it becomes ‘spent’ under the 1974 Act.  The fact that a conviction is spent is a weighty but not a decisive factor when carrying out the balancing exercise between the privacy rights of the applicant and the press’s right to freedom of expression.

The Decision

The Judge held that while XKF may not have a reasonable expectation of privacy in respect of the spent conviction per se (this was a conviction incurred by a police officer in the course of his public duty), he did have a reasonable expectation of privacy in relation to his attempt to rehabilitate himself. In reaching this decision, the Judge focused heavily on the steps taken by XKF since his release from prison – his new qualifications, new job and new place of work.  The Judge’s view was that XKF should be “entitled to walk to work without being suddenly ambushed by questions which require him to reveal his new identity and comment out of the blue on matters that happened many years ago,  and which he may not readily be able to call to mind.”

XKF accepted that the BBC could report any relevant material under his former name and that there is a strong public interest in the investigation of miscarriages of justice.  He did not accept, however, that the information he sought to protect contributed to the public interest here.  The Judge agreed.  She found that the relevant footage may show XKF in circumstances where he may “look and sound evasive” but that this did not materially contribute to informing viewers about Mr Lane’s case.  In contrast, the protection of XKF’s practical attempts to rehabilitate himself did justify an interference with the BBC’s rights.

Comment

This judgment, in similar fashion to NT1 & NT2  v Google LLC [2018] EWHC 799 (QB),  demonstrates the weight that the Court will attach to practical steps taken by an applicant to rehabilitate himself following a conviction.  Where there are extra public dimensions to a conviction (e.g. police officer in the course of public duty), it seems that the applicant will rarely be able to rely solely on the fact that it is spent to argue that he should have an expectation of privacy.  While the 1974 Act automatically treats a “rehabilitated person” for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence, it is now clear an applicant must sometimes do more to be able to legitimately claim an expectation of privacy (or to show that an interference with that right is unjustified).

Thus those truly wishing to keep similar information private might wish to consider:-

1. Changing their name (and/or appearance)
2. Moving house
3. Requalifying
4. Starting a new job
5. Changing their friends
6. Having children

By the time they have done all these things, however, they might have indeed forgotten who they once were.

Click here to see how Brett Wilson's specialist solicitors can assist you in seeking a privacy injunction.