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The BBC and Cliff Richard: what threat to press liberty?

Asking the Court of Appeal directly for leave to appeal could result in another opportunity to expose the dubious behaviour of the BBC news division, and at a higher judicial level.

Director general Lord Hall unveils proposals for future of BBC, 2016. Anthony Devlin/Press Association. All rights reserved.

On July 18, Mr Justice Mann handed down his judgment in the case brought by Sir Cliff Richard against the BBC for invasion of privacy. Eight days later, the BBC applied to him for permission to appeal, which he rejected. The BBC may yet approach the Court of Appeal directly, egged on by columnists in certain newspapers who have misread the judgement, and believe it to be a threat to press freedom.

On Thursday, August 14, 2014, nearly four years ago, the BBC had led its lunchtime television news bulletin with helicopter footage of a search carried out by South Yorkshire Police (SYP) of an apartment in Sunningdale owned by Sir Cliff. The search followed an anonymous complaint made by a man about an alleged sexual assault 30 years previously, when the complainant was 13 years old.

The SYP did not name the target of the search, but the BBC did, in nearly sixty news reports on television that day and the next (as well as countless radio ones): broadcasts, in the judge’s view, “presented with a significant degree of breathless sensationalism”. In awarding the entertainer record damages, the judge made scathing comments about the BBC’s behaviour, and was dismissive of much of the evidence offered by BBC witnesses under oath.

Immediately afterwards, standing outside the court, the BBC’s Director of News, Fran Unsworth, who had been Acting Director at the time, and had authorised the use of Cliff Richard’s name, said she needed to absorb the full “200-page” judgement (actually 122 pages, well worth reading) before deciding whether to launch an appeal, claiming – so she said – that freedom of the press was endangered by a judge ruling that factual coverage of a police operation could be unlawful. This was an argument taken up by a number of commentators, including some legal experts; perhaps because they had not read what the judge actually said.

The judge’s findings were admirably lucid. “The fact is that there is legislative authority restraining the press in the form of the Human Rights Act [of 1998], and that is what the courts apply in this area. The exercise I have carried out in this case is the same exercise as has to be carried out in other, albeit less dramatic, cases”.

The balancing act in each such case – and each case is individual, binding no future judge – is between articles 8 and 10 of the Act, protecting the right to privacy on the one hand and the right to free expression (exemplified by the press) on the other. Mr Justice Mann emphasised that neither right was unfettered, and worked his way through all the arguments on both sides in this particular instance.

His first analysis was whether there was a right to privacy when an individual was being investigated by the police, and of that he had no doubt. Even the issue of a search warrant (a low-level escalation of such an investigation) would very rarely justify identification of the target, and it would be a police decision as to whether to make such identification. The judge cited the Leveson Report in support of his ruling, and it is hard to believe that the Appeal Court, or the Supreme Court, would disagree with him.

Even then, his ruling leaves it to media outlets to decide for themselves in future situations whether to identify the target of an investigation or search (assuming they know the identity), and whether there is a public interest they could point to that would over-ride any right to privacy. If they were then sued, they could take their chances in court, just as the BBC has done in this case. Unfortunately for the BBC, Mr Justice Mann could see no public interest that required Cliff Richard to be named. The notion – much touted by national newspapers across the political spectrum – that this ruling inhibits press coverage of police activities is simply misconceived. The BBC, in the judge’s opinion, obtained Cliff Richard’s name, and its subsequent confirmation by the SYP, by improper means, and then effectively ignored his privacy rights enshrined in the 1998 Act. It is hard to see how “press freedom” is thereby brought into play.  

There may well be a public interest in disclosure where someone has been charged (though even that is not a universal rule), and such might also sometimes be the case when a person has been arrested. Even so, it is quite normal for the media to follow whatever formula is adopted by the police: for instance, “a 40-year-old man from Brentford has been arrested”. But the judge was clear that there were no such circumstances in this case, and that the BBC’s decision to name Cliff Richard at all – never mind the helicopter hired to film the search of his flat, and the huge prominence given to the story – was “an invasion of Sir Cliff’s privacy rights in a big way”, made despite the BBC knowing well in advance that the police had decided not to publicise a name.

The leak

The BBC argued in court that, although Cliff Richard had a right of privacy against SYP (public authorities being specifically mentioned in the act as not being allowed to interfere with the right to privacy except in particular circumstances, such as where there a danger to public safety), he did not have one against the BBC, which had learned of his identity separately from the SYP (though the SYP had then confirmed it).

Mr Justice Mann might have been willing to consider that argument, if the BBC had obtained the name legitimately. But the BBC’s own evidence was that it had come from a source that had clearly breached police confidentiality, such that, in internal email exchanges, news executives acknowledged that they could not have published Cliff Richard’s name as a target of a police investigation simply on the basis of the leak.

Nor did the judge accept that the BBC could ignore Cliff Richard’s right to privacy once it had received confirmation from SYP that he was under investigation, and that his UK home would be subject to a search warrant. This was because he believed the BBC had obtained that confirmation by illegitimate methods. Indeed, it is hard to see how someone’s right to privacy could be ignored by a media outlet just because it had gained unauthorised or questionable access to confidential police information.

The BBC tried to argue that investigations of historic sex offences were a subject of significant public interest which ought to be reported: and the judge agreed that the fact of an investigation might be a matter of public interest; but naming the target required a much higher level of significance, and in this case amounted to no more, in his view, than the BBC encouraging gossip-mongers in its pursuit of scoops and headlines.

Negative publicity

As a result, he concluded that all the negative publicity about Cliff Richard that followed the BBC’s extensive and exclusive coverage of the search, and identification of its target, was primarily the BBC’s fault: which is why he awarded such high damages. When comparing the £190,000 awarded to Cliff Richard to the £60,000 awarded to Max Mosley a decade earlier (which he re-valued to £76,000 in today’s money), he concluded that this invasion of privacy was at least “twice as bad”, not least because of the world-wide publicity resulting from the dozens of news reports the BBC had broadcast, with great fanfare and huge prominence for the story on its bulletins.

The judge said: “I regard the present case as much more, not less, serious than Mosley, and worthy of a much greater sum, not a lesser sum, than Mosley.” He did not think the award likely to “chill” press activity: “it is not an excessive figures; there is no punitive element; it is a genuine compensatory figure”.

He awarded a further £20,000 in aggravated damages with regard to the BBC’s submission of its story for the Royal Television Society’s “scoop of the year” award (though he noted it failed to win): a clear case, in his view, of adding insult to injury.

He assigned to the SYP sole liability for £5,000 of the damage, for its role in the affair, and also decreed that 35% of the rest of the final damages bill was attributable to the SYP. The police force had settled with Cliff Richard in May 2017, apologising to him, and paying him £400,000 compensation and £300,000 as an advance contribution to his costs, which it had also agreed to pay. In court, the SYP argued that the BBC should make a proportionate contribution to that settlement, and on July 26 the BBC proposed paying the SYP £315,000 and Cliff Richard £850,000 as contributions to their costs.

The judge made clear that much of the expense incurred by Cliff Richard in legal and public relations fees that he had incurred defending himself during the two years between the BBC broadcast and the closing of the SYP investigation (he was never arrested or charged) should be recoverable from the BBC and SYP; and possibly lost earnings, too.

Privacy

If the parties do not settle the issue of costs, along with other claims of aggravated damages, Mr Justice Mann will decide the matter. It seems inescapable that the BBC will be required to pay a large additional six-figure amount over and above the £2 million already imposed or offered: the debacle is far more costly than Newsnight’s libelling of Lord McAlpine six years ago (he received £185,000 in damages, and a swift apology, after being wrongly identified as a child abuser). That huge error indirectly led to the departure from office of Director-General George Entwistle after a mere 54 days in post.

It is reported that Entwistle’s successor, Lord Hall, who is also a former BBC Director of News and Current Affairs, was personally involved in the decision two years ago to reject an offer from Cliff Richard to withdraw his litigation in exchange for a public apology: that would have saved the BBC over £600,000 in legal costs fighting the case, plus the damages, special damages and additional damages now awarded, and its share of Cliff Richard’s costs.

The BBC argues that, in the case of McAlpine, it made a regrettable factual error: with Cliff Richard, the facts broadcast were true. But that misses the point – the evidence in this case is that the BBC barely considered Cliff Richard’s right to privacy (it did worry about defamation), and therefore failed to ask itself whether there actually was any public interest in naming him, with the attendant risk of damage to him (and in due course to itself) in pressing on.

The BBC’s editorial guidelines offer seven possible reasons for over-riding a person’s right to privacy on public interest grounds: none fits this case, though Fran Unsworth, giving evidence, cited “exposing or detecting crime” and “protecting people’s health and safety” as being relevant. The judge struggled to see how that was. Fortunately for her, he concluded that what he thought relevant was rather more important than what she thought.

She also said she was concerned about possible future criticism if the BBC did not report what it knew (no doubt thinking back to its long silence on Jimmy Savile): but again, the judge rejected her concern. “There was no obligation on the BBC to report [what it knew]: future criticism of the nature feared by Ms Unsworth does not matter”.

The “huddle”

Fran Unsworth was asked in court what legal advice she had taken, but – apart from saying that she had indeed sought advice before naming Cliff Richard – she failed to specify whether that advice had covered the issue of privacy and the balance between articles 8 and 10, as opposed to defamation. What the BBC witnesses said was that there had been a 15-minute management “huddle” on the newsroom floor on the day of the search, with Fran Unsworth at the heart of it, and that at 12.30 she authorised the naming of Cliff Richard in the 13.00 news bulletin.

The judge refrained from pointing out that by this stage the BBC had committed to tens of thousands of pounds of expenditure, not just in deploying a helicopter to overfly the Sunningdale apartment block, but despatching news teams to Portugal and Barbados to seek responses from Cliff Richard at his respective homes there. The BBC’s contract with ITN (they shared the costs of the helicopter on the basis of also mutually declaring breaking news stories to each other when using it) had been carefully sidestepped (something of which the judge took a dim view).

The news division was far too committed by 12.30 that day to pull back. Indeed, even if cold feet had prevailed at the last minute, the sheer scale of investment, impossible to conceal from a wider circle than those who had been included in the planning group (a limitation designed to protect the scoop, not Cliff Richard), would have almost certainly have led to the name becoming public. That Lord Hall... chose to go to the court rather than settle is yet further evidence of how the privilege of having public money to spend on one’s mistakes leads to abuse.

That Lord Hall, even after having time to reflect on this failure to weigh the issue of privacy properly, chose to go to the court rather than settle is yet further evidence of how the privilege of having public money to spend on one’s mistakes leads to abuse. If the BBC decides to appeal the judgment – as it is still contemplating, despite an initial rebuff of the idea from the trial judge – the strong likelihood is that even more hundreds of thousands of pounds will be spent.

“right to reply”

The judge acknowledged that the BBC had sought out spokesmen for Cliff Richard, on the day of the search, ostensibly in the pursuit of a “right to reply”, according to BBC editorial guidelines. Yet this effort could not commence until after the search had started (otherwise it might in theory have impeded the search, though, as it turns out, as soon as the management agents at the apartment block contacted Cliff Richard to let him know of the arrival of the police, he authorised their entry to the apartment).

With Cliff Richard’s public relations advisor, Phil Hall, abroad on holiday, and Cliff Richard himself travelling in Portugal, it took some time to get a message through that the BBC wanted urgently to talk to him about a story. The judge felt that the closing off of the “right to reply” opportunity by 1pm (in his view, in order to protect the scoop) meant that “the BBC did not quite comply with what it itself saw as the ethical requirements of its journalism”.

Phil Hall took a different view of the “right to reply”: he saw the carefully framed offer, lacking full detail of what he was expected to respond to, as an effort to get his client to corroborate whatever story the BBC may have had, and so get it off the hook on invasion of privacy – more subterfuge than ethical journalism. It is reasonable to surmise that the BBC’s lack of frankness with Phil Hall was designed to avoid the danger of an injunction, which the judge thought would most likely have been granted.

Certainly, by 12.30 that morning, with or without a response from Cliff Richard, the BBC was determined to name him. Phil Hall was only emailed a paraphrase of the SYP statement at 12.24, which he passed on to his client’s lawyers. At 12.45, he pointed out to the BBC researcher who had sent it that the police had not named the owner of the property being searched. She told him that the BBC knew it was Cliff Richard. That did not reduce his concerns. Only when, a few minutes later, the BBC 13.00 news bulletin led with the story did he realise what was going on.

At one point in the bulletin, Dan Johnson, the reporter who had obtained the original “leak”, said to camera: “despite our efforts this morning we have not been able get any response from Cliff Richard or his representatives” – a comment the Judge termed “hardly fair”. Within the hour, a statement describing the allegation as entirely false was issued by Phil Hall: but by then, the damage had been done – immense damage, as it turned out.  

SYP   

What led SYP to settle with Sir Cliff was not the the search of his property, but its improper co-operation with the BBC over the search, which came about as a result of Dan Johnson calling SYP’s head of corporate communications, Carrie Goodwin, on July 9, 2014, and surprising her with the extent of his knowledge of the Cliff Richard investigation, as well as by saying he was ready to go public with his information.

This knowledge was based – so he said – on a tip-off he had received a month earlier (he never explained why he had sat on it for so long). She immediately notified the Chief Constable of this breach of confidentiality and the danger of pre-emptive coverage of the case by Johnson, which might jeopardize the investigation.

Johnson was invited to a meeting with Detective Superintendent Matthew Fenwick, to whose overall supervision the case had been assigned, after its transfer from a broader investigation into historic sex abuse, entitled Operation Yewtree, run by the Metropolitan Police Service (MPS).

Fenwick and Goodwin met Johnson on July 15, 2014, and it was this meeting – and the conflicting accounts of it – which proved the nub of the case in court. According to Fenwick and Goodwin, Johnson told them what he knew (which, as Fenwick admitted, was pretty much what the SYP file contained). That, at least, is what the judge believed, accepting the evidence of the SYP witnesses rather than of Johnson, who claimed in court that he knew very little (other than the identity of the target) till the South Yorkshire Police put him in the picture.

The judge rejected that evidence as implausible (why would SYP go into panic mode if he knew nothing more than that?) and as being in direct conflict with all the available written evidence (emails, and notes of meetings and conversations).

The judge did not subject Johnson’s story of the tip to much scrutiny, as it did not really bear on the matters in dispute. Johnson claimed that someone with knowledge of Operation Yewtree told him (why?) that “another celebrity” was being investigated, and he “guessed” it was Cliff Richard, which his source then confirmed, having previously declined to provide the name. This is deeply implausible, other than as an advance attempt to protect that source, should the identity of the person involved ever become known to the Metropolitan Police: but it was not central to the issues the judge had to decide.

Goodwin and Fenwick felt they were dealing with damage control as a result of a leak from – or near – Operation Yewtree, almost certainly by a serving MPS officer. Johnson’s threat to publish what he had (which could have de-railed the investigation, by naming Cliff Richard, and making any search of a home fairly pointless), led them to offer co-operation in the shape of giving advance notice of when a search of Cliff Richard’s UK residence would take place (that Cliff Richard lived mostly in Portugal and Barbados left the police with few alternatives if they were going to search anywhere).

The SYP have been much criticised for the size of the eventual search operation (a month after the meeting with Johnson), at a location not owned by Cliff Richard at the time of the alleged offence, and 30 years after the victim claimed to have been assaulted. What possible incriminating evidence could they expect to find there which would require 8 officers, 5 vehicles and a search lasting 5 hours?

It is hard to resist the conclusion that the scale of the search was therefore a product of this negotiation: having committed to an agreement that the BBC would be warned in advance, SYP could scarcely have turned up with one vehicle and three officers, and stayed the bare hour that in reality is all it could have entailed in normal circumstances. SYP had no doubt they were being blackmailed, which is the word they used in internal correspondence and in court: a terminology which the judge broadly endorsed.

Blackmail

BBC managers knew all about Johnson’s behaviour, and were filled with glee that the SYP were “over a barrel”, and that “Dan the man” had “nailed them to the wall” (according to internal emails produced in court). Senior executives told themselves that, of course, Johnson was not empowered to publish anything without their approval, but declined to inform the SYP of this, eager as they were to enjoy the fruits of his journalistically enterprising approach. Indeed, given that Johnson’s tip-off was most likely an illegal breach of police confidentiality, he and the BBC would have been most unwise to publish Cliff Richard’s name before it was confirmed by the SYP.  

The judge described the SYP witnesses as honest, careful, reliable, clear, credible and materially correct. The best he could say for Johnson was that he was “not fundamentally dishonest”, but could “twist matters in order to pursue his story” and twice left the SYP under a false impression because “his enthusiasm for his story got the better of his complete regard for truth”.

Other BBC witnesses fared no better: of Declan Wilson, Johnson’s boss as North of England Bureau Manager, the judge said “various aspects of his evidence were unsatisfactory, some particularly unsatisfactory: the totality of his evidence needs to be approached with caution”; as for Gary Smith, the UK News Editor, he was “obsessed with the merits of scooping news rivals”, could not always be regarded “as a reliable witness”, and was “defensive and evasive”, especially with regard to email traffic after the July 15 meeting with the SYP, which was “significantly inconsistent with the BBC’s case”.

Likewise, Jonathan Munro, Head of Newsgathering, who had little involvement with the affair but had signed the “statement of truth” with regard to the BBC’s case, and then “wilfully failed to acknowledge inconsistencies” in that case: he “refused to acknowledge the plain effect of some of the internal emails”. As for his boss, Director (no longer acting) of News, Fran Unsworth, she was honest in her testimony, but there was “one respect in which I do not accept her evidence” because it was “tinged with wishful thinking”.   

The cusp of the argument in court was the BBC’s claim that Fenwick and Goodwin had fabricated the notes of their July 15 meeting with Johnson so as to conceal the “fact” that they had volunteered most of the information about Cliff Richard to Johnson – a libel that would have cost the BBC yet more hundreds of thousands if it had been made outside the privileged sanctuary of court proceedings. The judge not only dismissed this allegation but demonstrated from the available evidence that it could not possibly be true.

Internal BBC emails confirmed that Johnson had made the threat of early publication, and there was undisguised glee within the news department at this prospective scoop. “Sit Down When You Read This” was the heading of one internal email. “Congratulations. And Jubilation. I want the world to know I’m happy as can be,” came one reply. On August 17, Munro emailed Unsworth to alert her to the fact that Johnson may have “given the impression” that he would have “compromised the enquiry”: but that does not seem to have given either of them pause, or deter them from subsequently spending 13 days in court defending his behaviour.

There was speculation that Cliff Richard might be arrested – “gripped” – at Wimbledon: an editorial fantasy, given that the Wimbledon tennis tournament was already over. Indeed, Fenwick told Johnson that no arrest – let alone charge – was likely, as the complainant’s story was too weak to put to prosecutors (he was apparently confused as to which Sheffield football ground was the location of the alleged offence). Johnson seems not to have passed on this rather important information, though his notes confirm he was given it.

Indeed, he appears to have told his bosses that Superintendent Fenwick would go on camera naming Cliff Richard: “Dan’s source is the SIO” – the senior investigating officer (which was not quite true: Fenwick was not the case’s SIO) – his work is “bloody cracking”). Fenwick did indeed agree to do a statement to camera, on the day of the search, but without naming the target – somewhat frustratingly, as far as the BBC was concerned, as Fran Unsworth would now have the invidious task of deciding whether to name the search target.

Johnson had further misled the SYP, in the judge’s opinion, lulling them into a false sense of security by telling them that he “hadn’t said anything yet” to his bosses, at a time when those bosses were rubbing their hands with glee at how he was “nailing them to the wall”: but that only bore on his general reliability rather than the merits of the case.

BBC and SYP

The cordial – if wary – relationship between the BBC and the SYP almost came unstuck on the day of the search, when a BBC crime correspondent, Danny Shaw, recorded a piece to camera – which he then placed on the BBC website – saying that the tip off to the BBC from SYP “appears to be a deliberate attempt by the police to ensure maximum coverage – this is not illegal but the force may have to justify its approach in the months to come”.

Perhaps prompted by this, a reporter on Channel Four News an hour later stated that the name of the target “should not have been publicized save in exceptional circumstances”. SYP immediately complained to the BBC, and Johnson tried – in vain – to persuade Shaw to withdraw his mistaken claim. The next day, senior executives eventually mollified the SYP team by tweeting that Shaw’s piece had been wrong, and that the source for the BBC’s naming of Cliff Richard had not been the SYP.

Yet, in court, the BBC’s QC tried to re-run a version of the Danny Shaw line: that the SYP had encouraged the naming of the target, not – to use the judge’s expression – to “shake the tree” in case other complainants might come forward (that was evidently not the case, as SYP so carefully avoided naming Cliff Richard), but so as to enhance their reputation.

The judge took a dim view of this line of defence: why would the SYP want to draw so much attention to one of their weakest cases, which they did not expect ever to come to court? To that, the BBC had no answer, and Mr Justice Mann gave short shrift to the entire conspiracy theory. If the board of the BBC gets round to reading his dissection of the defence case, they will surely ask some serious questions about the Corporation’s strategy and tactics.

The BBC tried to argue that, once it had its tip-off, it was entitled, even duty-bound, to publish Cliff Richard’s name. The judge was having none of this: article 10 enshrined certain rights in relation to freedom of expression, but these were not absolute, and certainly did not amount to a duty. In any case, “Mr Johnson wrongfully exploited previously acquired confidential information to manoeuvre SYP into its further disclosures”.

The BBC claimed that a privacy suit could not include compensation for reputational damage (which was the province of defamation law): but again Mr Justice Mann demurred. “I think the exact opposite is the case. The facts of this case vividly demonstrate why damages should be available for an invasion of privacy resulting (inter alia) in damage to reputation.”

“Get the BBC out of jail”

The BBC had one last throw of the dice. Because the SYP are a public authority, they should not be allowed to seek from the BBC a contribution to the settlement they had agreed with Cliff Richard. The ingenious argument rested on the fact that public authorities cannot claim rights of free expression under article 10, and so have no “balancing” process available in judging liability. Indeed, by extension, said the BBC’s QC, the SYP should be entirely responsible for the damages awarded against the BBC.

The judge described this as a “get the BBC out of jail free” argument, and was “not displeased to find” that “such a strange result” could not actually flow from the Human Rights Convention. Where there are two wrong-doers, he said, “I cannot understand why the non-state perpetrator should get off scot-free. Nor am I troubled by the absence of any authority which supports this position. That could well be because it is obviously right.”

The BBC is still mulling over whether Mr Justice Mann was “obviously right” in finding for Sir Cliff, and making the award he did. When Gavin Millar QC, for the BBC, tried to argue to the judge on July 26, in seeking leave to appeal, that he had been wrong on the law and wrong in his analysis of the facts, Mr Justice Mann was dismissive to the point of rudeness: it was the BBC, not he, that had failed to understand the law and the significance of its actions.

An appeal would be costly, and is unlikely to succeed. Even asking the Court of Appeal directly for leave to appeal (the only step remaining other than settling its bill) could result in an embarrassing rebuff for the BBC, or, perhaps worse still, another opportunity to expose the dubious behaviour of the BBC news division, and the unimpressive performance of its witnesses at trial, to yet more scrutiny, and at a higher judicial level. A failed appeal might well be the mistake that costs Lord Hall his job, just as the McAlpine affair cost George Entwistle his.

About the author

David Elstein is Chairman of openDemocracy's Board. He is also Chairman of the Broadcasting Policy Group. 


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