Far from taking pride in invading Cliff Richard's privacy, the BBC should hang its head, says Dominic Crossley of Payne Hicks Beach
In 2008 I acted for Max Mosley in his claim against the News of the World. In my view, the article upon which that claim was based represents the low water-mark for tabloid journalism.
Others disagree. The publishing executives thought so much of the article that, despite it costing them at least ’1 million in costs and record damages in court, they put it forward as 'scoop of the year' at the British Press Awards. Putting aside the money, they thought their newspaper deserved accolade for unlawfully ruining a man's reputation. Do the BBC have the same mindset with their award bid for the Cliff Richard expos’?
Let's recap. It is 14 August of last year, and rumours about Sir Cliff Richard have been circulating for some time on the internet. South Yorkshire police were investigating an allegation of an assault said to have taken place in the Eighties; the existence of that investigation had remained confidential; there had been no arrest or charge; Sir Cliff had not been interviewed or otherwise notified of the investigation.
On 14 August he found out, like the rest of us, by live televised coverage of the police convoy arriving at his house; by the BBC helicopter filming through his windows to show police rummaging through his property; and by reading that he was being investigated for 'historic sexual abuse' like Jimmy Saville, Max Clifford etc. Vague internet rumours became widespread assumption of guilt. There has still been no arrest.
Keith Vaz and his Home Affairs Select Committee investigated. South Yorkshire Police's handling of the matter was described as 'utterly inept': 'No British citizen should have to watch their home being raided by the police live on television. Sir Cliff Richard has suffered enormous and irreparable damage to his reputation and he is owed an apology over the way matters were handled.'
The BBC received no such criticism. It was, they said, 'well within its rights' to run the story. The BBC executives' assured handling of the committee's light questioning compared favourably to Chief Constable David Crompton's evidence on behalf of South Yorkshire Police. It appears to have been all the encouragement the BBC needed. From being on the defensive, they are now seeking congratulation. But was the BBC really 'well within its rights', let alone worthy of accolade?
Clearly the police have a duty in respect of the subject of an investigation, but so too do the media. The Leveson Inquiry took evidence on the issue of the interaction of the police and the media. Leveson concluded: 'Save for exceptional circumstances (of example where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press.'
I cannot see what the exceptional circumstances or persuasive public interest could have been in this case. The argument that other 'victims' may come forward following the publicity does not, for me, work in these circumstances. The police are investigating a specific crime and if it is enough to warrant charges, then other victims may come forward at that public stage in the process.
I agree with the select committee that the police erred badly. In my view the legality of the search itself is highly questionable, let alone its top billing by our public service broadcaster.
In applying for an award it is clear that the BBC takes credit for the broadcast rather than the 'inept' police officers who made it possible. Will it also take the liability? Sir Cliff Richard's lawyers will have received some encouragement from a judgment last year in the case of Hannon.
Hannon sought compensation from both the police and the publishers of the Sun newspaper for the consequences she suffered following a paid tip-off and a sensationalist and humiliating account of her ordeal and arrest (she was not charged or convicted). The publishers of the Sun newspaper failed in their argument that the case could not proceed because there is no reasonable expectation of privacy in the existence of an arrest. The judge decided that the case had sufficient merit to be decided at trial and it was settled soon afterwards.
The submission for 'scoop of the year' betrays an arrogance I do not associate with the BBC. It seems to me to be desperately inappropriate to seek congratulations for a decision that achieved little aside from the irreparable and thus far wholly unjustifiable damage to a man's reputation. A writ from Cliff may yet spoil the celebrations.
Dominic Crossley is a partner in the privacy and media law department at Payne Hicks Beach