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Should suspects of historic child sex offences be named?

Ursula Smartt | June 5, 2020

Should suspects of historic child sex offences be named? Cliff Richard v the BBC.

Ursula Smartt – Lecturer in Law at New College of the Humanities

Most NCH student readers will most likely not have heard of the darling pop singer of the nation, Cliff Richard. Sir Cliff Richard OBE, born Harry Rodger Webb on 14 October 1940, began his singing career in the late 1950s, hailed as the British Elvis or Little Richard. Cliff sold more than 250 million records worldwide; more than 130 of his singles, albums and EPs reached the UK Top 20, more than any other British artist. Now 80 years old, Sir Cliff still entertains the crowds when it rains at Wimbledon with hits such as ‘Congratulations’ (Eurovision Song Contest in 1968) and ‘Living Doll’. 

The year 2018 can be remembered not only for the British heatwave but also for a number of high-profile trials, resulting in hot legal debates among privacy lawyers. Two high court judges made headlines, Mr Justice Warby and Mr Justice Mann. Two cases remained anonymous, known only as NT1 & NT2 and CRUNCH readers are asked to consult a law student who will – no doubt – locate the conjoined judgment via Westlaw. Suffice it to say that NT1 and NT2 were both convicted of conspiracy to defraud and both claimants tried to have their criminal past ‘delinked’ and ‘delisted’ from the Google search engine, exercising their ‘right to be forgotten’ (see: NT 1 & NT 2 v Google LLC [2018] EWHC 799 (QB))

In this privacy action against the BBC (and initially against the South Yorkshire Police  – SYP), Sir Cliff claimed that his rights to both privacy (Art 8 ECHR) and under the Data Protection Act 1998 (now replaced by the GDPR) had been violated (see: Sir Cliff Richard OBE v (1) The British Broadcasting Corporation (2) The Chief Constable of South Yorkshire Police [2018] EWHC 1837 (Ch)). He claimed – and was subsequently awarded – substantial damages against the BBC, because he argued that his personal life, his long-standing reputation and finances had been radically affected by the way he had been treated by the public broadcaster. The Richard court battle took more than 5 years, with the SYP settling early out of court, paying Sir Cliff damages of £400,000, plus his court costs of £300,000 with a public apology.

Following the Sir Jimmy Savile allegations in 2013, that the famous BBC entertainer had allegedly sexually abused 589 victims, English police forces began to investigate and expose other high profile historic child sexual abuses, dating back to the 1970s. As part of Operation Yewtree allegations had also been made against Cliff Richard by a then 16-year-old boy about an incident in the 1980s at a Billy Graham evangelist rally in Sheffield. As part of these allegations the SYP had obtained a warrant to search Sir Cliff’s apartment in Sunningdale, Berkshire, in August 2014. BBC reporter, Dan Johnson, had received a tip-off by a SY police officer and the raid was broadcast live as a BBC exclusive over the August weekend via a BBC helicopter coverage ‘world exclusive’. Sir Cliff was subsequently never charged with any offences. 

In the case against the BBC and SYP, Mr Justice Mann had to decide how far an individual’s privacy rights extends in respect of the pre-charge stage of a police investigation? The Richard case centred on the meaning of ‘reputation’, i.e. that of a famous pop star who was well into his late 70s. A large part of the judgment centres on the fact that Sir Cliff was a devout Christian. Mr Justice Mann mentioned this at least 17 times during his judgement, for example, that the national treasure was a man ‘known for his publicly stated Christian beliefs,’ that he had participated at various Christian events, and that Sir Cliff was ‘a committed Christian’ and ‘promoted his Christian beliefs in his writing and his public appearances’. Was the judge perhaps a little carried away by this? The judge noted that a despicable Facebook page had been created, ‘Christians against Cliff,’ which in the judge’s words contained ‘a large number of outrageous, highly offensive and defamatory allegations and remarks about Sir Cliff.’ It is debatable whether this fact influenced the judge’s opinion too much, leading the Mann J to grant the singer his right to privacy under Article 8(1) ECHR. Sir Cliff was awarded £210,000 in damages against the BBC.

The Richard judgment has been regarded as controversial on many levels, because of its precedent which, as many journalists would argue, contravenes their right to freedom of expression (Art 10 ECHR) and the open justice principle. Until then, the British media could report fully (name, address etc.) on a suspect charged with a sexual offence and these details were not anonymised. What remains unclear is whether the media must now wait until someone is charged with a sexual offence?

Following the Richard judgment in July 2018, the then Nottinghamshire Conservative MP, Anna Soubry, used Prime Minister’s Questions to ask Prime Minister, Theresa May, to bring in a new law, called ‘Cliff’s Law’. Ms Soubry proposed a blanket ban on identifying people questioned by police as suspects, concerning sexual offences. This law has not been introduced yet. 

The Cliff Richard case has left a legal conundrum for journalists: what can and cannot be reported in respect of the pre-charge stage of a police investigation? Mr Justice Mann’s judgment in Richard has left this journalistic conundrum unresolved, made all the more difficult by a range of conflicting opinions, conventions and ‘contempt’ laws in the UK.