Publicity: The UK Perspective

38.1 Introduction

Publicity is a necessary commercial consideration for any organisation, particularly within the context of a criminal or regulatory investigation, or a prosecution. Placing it high on the company’s agenda ensures that organisations are able to respond swiftly and effectively to the announcement of such action, enabling them to steer some of the narrative promulgated by mainstream and social media. Any communications strategy needs to be carefully pitched and aligned with legal advice to avoid unintended adverse consequences. Mistakes in communications can have a real impact on prosecutorial behaviour and a company’s ability to effectively engage with prosecution agencies.

This chapter sets out a number of factors an organisation should consider before and after the commencement of an investigation or prosecution. It goes on to consider the legislation that governs the publication of information and the effect that remote hearings may have on the principle of open justice.

38.2 Before the commencement of an investigation or prosecution

38.2.1 Identify a public relations team

One of the first things an organisation should think about when considering publicity in an investigation or prosecution is who should be at the table when news breaks. Alongside the most obvious candidates (chief executive officer, head of public relations), individuals such as the chief technology officer and the chief data officer or data protection officer should also be considered. That is because once an organisation is placed under investigation or made subject to a prosecution, it will have to put in place document holds to ensure that information is not inadvertently destroyed. Equally, data that is required to be handed over to enforcement agencies is likely to contain personal data, as defined by Regulation EU 2016/679 (General Data Protection Regulation (GDPR)). Therefore, data processors should contemplate how such data will be processed in compliance with the GDPR.

Beyond internal stakeholders, an organisation should consider whether to engage reputable and experienced public relations advisers who can help to coordinate any engagement that the company has with other external stakeholders and mainstream media. In addition, if it has not already done so, the company should think about whom it intends to instruct as external counsel.

38.2.2 Determine the remit of the public relations team and a response plan

Once an organisation has identified who will be part of the core public relations team, it will need to devise a response plan; that is, determine what needs to be done upon becoming aware of the investigation or prosecution. Actions relating to the response plan can be split into two categories: internal and external. The public relations team will need to determine the role of each member – including who has ultimate sign-off on each decision – and to assign each (internal and external) action to one or more individuals. The team needs to be able to act nimbly and to make and effect decisions in real-time. Many organisations have difficulty in delegating appropriately and getting ahead of the narrative. An ineffective and purely reactive team will lead to poor internal and external relations.

38.2.3 Undertake tabletop exercises

Individuals often do not operate at peak performance when they are panicked or caught off-guard. The same can be said of organisations. It can be worthwhile for a company to invest time in carrying out a rehearsal. A simulation can help to highlight common pitfalls, such as a senior executive providing comments to the press that are not founded in fact. It can also ensure that an organisation can respond to an announcement promptly and effectively, so as to mitigate any damage that can flow from it. Appropriate media training for any individuals interacting with the press is essential.

38.2.4 Self-reporting

If an organisation decides to self-report to a prosecutor, where there has previously been no publicity on the relevant conduct, that will afford the company more time to consider how to respond to media interest once the self-report has been made public. It also places a company in the advantageous position of knowing in more detail the facts surrounding the relevant conduct, minimising its risk of having to provide subsequent corrections or clarifications. After self-reporting, a company would be well advised to agree any media reporting with prosecutors.

38.3 Following the commencement of an investigation or prosecution

38.3.1 Internal actions and communications

Following the commencement of an investigation or prosecution, the public relations team will need to promptly convene a briefing meeting, after which the team will need to begin implementing the response plan. As mentioned above, the response plan can be divided into internal and external actions. External actions are considered below. Internal actions will probably include:

• determining whether document holds should be placed over any information;
• ensuring that the processing of any personal data complies with the GDPR;
• determining whether to conduct a parallel internal investigation and employee interviews;
• considering whether it is likely that a search warrant will be executed and making preparations; and
• if the company is publicly listed, determining what disclosures need be made as a result of the company’s public listing.

An organisation will also need to consider when and how to communicate with its internal stakeholders. To do that, it will first need to identify the internal stakeholders. These will include employees, the board of directors and shareholders.

38.3.1.1When to communicate with internal stakeholders?

When information about the investigation or prosecution is made public, internal stakeholders are likely to become aware of it very quickly. As a result, they should be communicated with promptly. The primary intention of communication should be to provide information and reassurance. It should additionally ask employees not to comment individually and address what they should do if they are approached by the media.

38.3.1.2How to communicate with internal stakeholders?

An organisation will want to ensure that a consistent message filters down through the organisation. These types of communications can be most effective when they come from one source, typically the chief executive officer, and address all internal stakeholders at the same time.

38.3.2 External actions and communications

In any investigation or prosecution, it will be necessary to liaise with prosecutors. Those communications will often not be conducted in public and will be led by the company’s general counsel or head of legal. Where possible, companies should avoid commenting upon a case through general counsel as that can cause unnecessary complications with external agencies at a later stage.

In addition, an organisation will need to consider whether to issue a press release and the media platform, or platforms, on which to do so. In light of the expanding number of outlets through which organisations can communicate with stakeholders and the wider public, it is no longer necessary for a company to solely engage with, if at all, mainstream media. A company may consider that there is no need to engage in any oral broadcast and instead communicate via platforms such as Twitter and Facebook. Alternatively, or additionally and as is common, an organisation may issue a press release on its website.

If an organisation does wish to make a public oral statement, a great deal of planning should go into determining how, when and where the statement will be made and what can be done to mitigate the risks. Those risks were all too evident from the fallout of Prince Andrew’s interview with the BBC about his relationship with Jeffrey Epstein, a convicted sex offender. Indeed, once an organisation has agreed to provide an interview or to accept questions from the media, although what can be discussed may have been agreed in advance, few questions will in reality be off limits, and a failure to answer a particularly difficult question could be seen unfavourably. Companies must also be careful not to prejudice an active investigation or prosecution, or make comments that are not founded in fact, which could force a damaging retraction or correction. The importance of ensuring that all public statements and comments are consistent and accurate may mean that, particularly at the early stages of an investigation or prosecution, it is necessary to keep all statements short and based on information within a company’s knowledge.

However, as much as an organisation may wish to escape direct communication with the mainstream media, it is unlikely that it will be able to insulate senior executives, who regularly appear in public, from being asked questions. As a result, consideration should be given to how those individuals should be expected to respond. Preparation and training for senior executives is essential. A senior executive appearing at annual meetings or a conference must be well briefed and prepared to answer difficult questions from journalists.

After an organisation has decided to make a public statement, and determined its form, the company will have to decide when to communicate it. Depending on the facts, organisations may choose to be proactive, having considered that this approach allows them to influence the narrative and maintain public confidence. Following a public statement, ongoing monitoring and correction of media content pertaining to the investigation or prosecution will need to be maintained. That role may be assigned to a member of the public relations team.

38.4 Following the conclusion of an investigation or prosecution

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Following the conclusion of an investigation or prosecution

38.4.1 Communications with relevant prosecuting authorities

Where an investigation has concluded without further action being taken against a company, or a prosecution of a company has led to an acquittal, the company should ensure that all media content relating to the investigation or prosecution reflects this.

38.4.2 Debrief

Once an investigation or prosecution has concluded, regardless of the legal outcome, an organisation may find value in reflecting how the company conducted itself throughout the process, and consider lessons learned should it unfortunately find itself in a similar situation in the future.

38.5 Legislation governing the publication of information

38.5.1 Common law principle of open justice and derogations

38.5.1.1Open justice

The constitutional principle of open justice prescribes that justice should be administered in a way that allows all to see it. The principle is enshrined in Article 6 (the right to a fair trial) of the European Convention on Human Rights (ECHR) and comprises one of the core tenets upon which the United Kingdom’s legal system is founded. The Criminal Procedure Rules state that when courts are exercising their powers in relation to reporting, and furthering the overriding objective of dealing with cases justly, they must have regard to the importance of dealing with criminal cases in public, and allowing a public hearing to be reported to the public.² The principle is motivated by the desire (among others) to ensure that courts and tribunals can be held accountable for the decisions that they make, and to maintain public confidence in the way that those decisions are made.

In 2019,³ Lady Hale, the former President of the United Kingdom Supreme Court, held that the common law principle applies to all courts and tribunals exercising ‘the judicial power of the state’.⁴ Those institutions enjoy an inherent jurisdiction to ‘determine what that principle requires in terms of access to documents or other information placed before [them]’.⁵ However, the principle is not absolute; there are certain circumstances, albeit limited and exceptional, in which courts and tribunals can exercise their inherent jurisdiction, or jurisdiction under the Human Rights Act 1998,⁶ to derogate from it.⁷

38.5.1.2Derogations from the principle of open justice

Any derogation from the principle of open justice must be necessary and based on clear and cogent evidence.⁸ An organisation can appeal a Crown Court’s decision to derogate from the principle.⁹

Suspects in criminal investigations before they are charged

In 2020, the Court of Appeal (in England and Wales) reaffirmed that individuals under police investigation are entitled to a reasonable expectation of privacy before they are charged.¹⁰ The Court held that there is ‘little justification for a hierarchy of offences’ to which the reasonable expectation applies.¹¹ In ZXC v. Bloomberg, the allegations concerned fraud, bribery and corruption. Nevertheless, there may be occasions where that reasonable expectation of privacy is ‘significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration’, such as in the cases of rioting and electoral fraud.¹²

The case followed an earlier decision by the High Court in a case where Sir Cliff Richard successfully sued the BBC for its coverage of a police raid on his home as part of an investigation into historical child sexual abuse allegations.¹³ In that case, the Court held that ‘as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation’.¹⁴

The Leveson Report on the culture, practices and ethics of the British media was published in 2012. In relation to the naming of suspects, it concluded that ‘save in exceptional and clearly identified circumstances (for 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 or the public’.¹⁵

In 2017, the College of Policing published its ‘Media relations’ guidance (the Media Guidance). It states that ‘suspects should not be identified to the media (by disclosing names or other identifying information) prior to the point of charge except where justified by clear circumstances, e.g. a threat to life, the prevention or detection of crime or a matter of public interest and confidence’.¹⁶

However, the existence of guidance and legal authority on the issue does not mean that either is always followed in practice. Suspects who have not yet been charged are routinely identified by the media, and in some cases, in public statements issued by prosecution agencies. Individuals about whom false statements are made in the media are able to sue those responsible in the civil courts for libel. Nevertheless, while such recourse exists in principle, the case brought by Johnny Depp against News Group Newspapers Ltd¹⁷ illustrates that the further reputational damage caused by media coverage of a libel suit can outweigh any potential benefit.

Suspects in criminal investigations after they are charged

Once a suspect has been charged, he or she is no longer able to claim a reasonable expectation to privacy.¹⁸ In that regard, the Media Guidance states: ‘Those charged [which includes those who receive a summons to court] with an offence should be named unless there is an exceptional and legitimate policing purpose for not doing so or reporting restrictions apply. This information can be given at the point of charge.’ It also states that police forces should ‘proactively’ release information relating to charges in serious crimes, such as rape or murder.¹⁹

In the event that charges are withdrawn before a person first appears in court, the Media Guidance advises that such information should be proactively released ‘as soon as possible’.²⁰

Persons named in open court proceedings

Persons who are named in open court are not entitled to a reasonable expectation of privacy.²¹ That includes suspects who have not been charged, and who would therefore ordinarily be entitled to an expectation of privacy, but have already been named in open court as a result of being referred to in charges laid against others. However, if it is known that a person not directly involved in criminal proceedings intends to be referred to in open court before in fact they are, an application for anonymity can be made to the court.²²

Businesses

In relation to businesses, the Media Guidance states that:

Businesses may be routinely identified as part of police investigations, for example as part of an appeal for witnesses. In some cases operational policing reasons may prevent businesses being identified, for example where it could impact upon an investigation. The need to protect private information may also prevent businesses being identified, e.g. in circumstances where identifying a business might indirectly identify a suspect. Decisions should be taken on a case by case basis.²³

Publicity restrictions where absolute ECHR rights are engaged

A number of rights afforded to individuals under the ECHR are absolute and therefore no derogation is permitted. These include the right to life (Article 2) and the right to freedom from torture or inhumane or degrading treatment or punishment (Article 3). As a result, where those rights are engaged, a court or tribunal may have to suspend the application of open justice in some way. Such circumstances may be found in international cases where individuals relevant to the proceedings are based in other jurisdictions.

Publicity restrictions where qualified ECHR rights are engaged

In circumstances where qualified rights under the ECHR are engaged, such as the right to respect for private and family life (Article 8), the right to a public hearing (Article 6) and the right to freedom of expression and information (Article 10), a court or tribunal must undertake a balancing exercise to determine whether a person’s privacy rights should weigh in favour of a proportionate interference with Article 10.²⁴

38.5.2 Statutory reporting restrictions in the criminal courts

38.5.2.1Reporting restrictions generally

Courts and tribunals have no inherent jurisdiction or power derived from common law to impose reporting restrictions.²⁵

38.5.2.2Automatic reporting restrictions

The strict liability rule

Pursuant to sections 1 and 2 of the Contempt of Court Act 1981, if published information (including written and oral publications), or other communications in whatever form, create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced, that conduct will amount to the offence of contempt of court. As it is a strict liability offence, it does not matter whether the relevant person intended to interfere with the course of justice. However, a person will not be guilty of the offence if he or she contemporaneously, and in good faith, published a fair and accurate report of the public legal proceedings.²⁶

In relation to such proceedings, in circumstances where the court considers it necessary to avoid a substantial risk of prejudice to the administration of justice, it may order that the publication of any report of the proceedings be postponed for a period that it deems necessary.²⁷

Pre-trial hearings, preparatory hearings and dismissal hearings

Automatic reporting restrictions exist in relation to the following:

• pretrial hearings;²⁸
• preparatory hearings that are held in relation to, among other cases, serious fraud cases. However, the name of the defendant and the offence with which they have been charged may be reported; and ²⁹
• dismissal applications in the Crown Court relating to persons sent for trial there under sections 51 and 51A of the Crime and Disorder Act 1998. As with preparatory hearings, the name of the defendant and the offence with which they have been charged can be reported.³⁰

The restrictions set out above cease to apply once the trial has concluded. Although, a court may remove or limit the restrictions before that time in certain circumstances. In relation to pretrial and preparatory hearings, if the defendant objects to an order removing or limiting the restrictions, a court may only make the order after hearing representations from the defendant (which must not be reported), and, upon hearing those representations, being satisfied that it is in the interests of justice to make it.³¹

Prosecution appeals

Automatic reporting restrictions apply in relation to prosecution appeals. However, a court may make an order to limit or not to apply the restrictions. If the defendant objects to the making of such an order, similarly to pretrial and preparatory hearings, the order can only be made if, after hearing the defendant’s objections (which must not be reported), the court considers that it is in the interests of justice to make it.³²

38.5.2.3Discretionary reporting restrictions

Deferred prosecution agreements

A court may order that the publication of a deferred prosecution agreement is postponed for such period as the court deems necessary, if the court considers that postponement is necessary to avoid a substantial risk of prejudice to the administration of justice.³³ In such cases, a company will have agreed a statement of facts that will likely form the basis of any subsequent Serious Fraud Office press release.

38.5.3 Public access to information and documents from criminal courts

In circumstances where documents have been placed before a judge and referred to in open court, the court has an inherent jurisdiction to disclose them.³⁴ That is in part because the principle of open justice exists not only to ensure that court decisions are made lawfully and in the absence of any impropriety, but also ‘to enable the public to understand and scrutinise the justice system of which the courts are the administrators’.³⁵

Where a party makes an application for the disclosure of such documents, the following test, as set out by Lord Justice Toulson (as he then was), should be applied by the court:

The default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons . . . I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.³⁶

38.5.4 GDPR and the Data Protection Act 2018

The UK Data Protection Act 2018 (DPA 2018) gives effect to the provisions contained in the GDPR. An organisation is likely to fall within the definition of a data processor, as defined in the legislation. As such, it must ensure that all personal data is processed in compliance with the GDPR. That could mean that the release of certain information into the public domain, whether via a press release, public statement or other such channel, is prohibited under data protection legislation. That obligation underlines the significance of ensuring that a company’s data protection officer forms part of the public relations team and sits in on any related briefings.

38.5.5 Tension between publicity and privilege

Once an investigation or prosecution has commenced, a company may claim litigation privilege over certain documents that come into existence for the sole or dominant purpose of litigation. Equally, it will be able to claim privilege over certain documents relating to legal advice sought from or provided by the company’s lawyers. When communicating with stakeholders and mainstream media, a company must be careful to ensure that it does not inadvertently waive privilege. Unscripted statements from senior executives regarding an ongoing investigation may inadvertently waive privilege, which could have severe consequences. This is another reason why it is generally better for general counsel or members of the company’s in-house legal team not to be involved in directly speaking with the media.

38.6 The changing landscape: remote hearings and open justice

Before 2020, remote hearings were reserved for the most straightforward and largely administrative hearings in the criminal courts, such as case management hearings. However, the onset of a global pandemic has exponentially advanced the UK court and tribunals system’s ability and willingness to undertake remote hearings for all types of hearings.

On 25 March 2020, the Coronavirus Act 2020 came into force and increased the range of hearings that can be conducted by way of video or audio link by inserting amendments into a number of Acts that govern proceedings in the criminal courts; including, the Courts Act 2003, the Criminal Justice Act 2003 and the Crime and Disorder Act 1998. Among other things, the amendments allow for fully remote hearings.

The speed at which such change was implemented, to ensure that access to justice was not further delayed, was commendable. It was a novel approach to criminal hearings that raised the question of how the principle of open justice could be upheld when there no longer existed a dedicated space for members of the public and journalists to attend. The provisions set out in the Coronavirus Act went some way to addressing that question. Where a court directs that proceedings are to be conducted wholly as video proceedings, it is afforded the discretion to ‘direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings’.³⁷ A similar provision exists for audio proceedings.³⁸

Remote proceedings of all kinds are now well established. As at 14 May 2021, approximately 225,000 hearings had taken place using the Cloud Video Platform³⁹ in magistrates’ courts and Crown courts.⁴⁰ Owing to the need for all parties to expose themselves to and familiarise themselves with such technology in a relatively short period, on the whole, remote hearings appear to be working well. Contested hearings and hearings that involve vulnerable witnesses and defendants continue to present challenges.

Footnotes

¹ Kevin Roberts is a partner, and Duncan Grieve and Charlotte Glaser are associates, at Cadwalader, Wickersham & Taft LLP.

² Criminal Procedure Rule 6.2(1).

³ Cape Intermediate Holdings Ltd v. Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38.

⁴ ibid., at 36.

⁵ ibid., at 41.

⁶ Which transposes the ECHR into UK domestic law.

⁷ Khuja v. Times Newspapers Limited & Ors [2017] UKSC 49, at 14.

⁸ Scott v. Scott [1913] AC 417.

⁹ Criminal Justice Act 1988, s.159.

¹⁰ ZXC v. Bloomberg LP [2020] EWCA 611.

¹¹ ibid., at 84.

¹² ibid., at 84.

¹³ Sir Cliff Richard OBE v. The British Broadcasting Corporation & Anor [2018] EWHC 1837 (Ch).

¹⁴ ibid., at 248.

¹⁵ Volume 2, Chapter 4, para. 33, page 984.

¹⁶ See para. 3.2.

¹⁷ John Christopher Depp II v. News Group Newspaper Ltd [2020] EWHC 2911 (QB).

¹⁸ ZXC v. Bloomberg LP [2020] EWCA 611.

¹⁹ See para. 4.5.

²⁰ id.

²¹ Khuja v. Times Newspapers Limited & Ors [2017] UKSC 49.

²² id.

²³ See para. 4.7.

²⁴ Re Guardian News and Media Ltd & Ors in HM Treasury v. Ahmed & Ors [2010] UKSC 1.

²⁵ Khuja v. Times Newspapers Limited & Ors [2017] UKSC 49, at 18.

²⁶ Contempt of Court Act 1981, s.4(1).

²⁷ ibid., s.4(2).

²⁸ Criminal Procedure and Investigations Act 1996, s.41; Magistrates’ Court Act 1980, s.8A.

²⁹ Criminal Procedure and Investigations Act 1996, s.37; Criminal Justice Act 1987, s.11.

³⁰ Crime and Disorder Act 1998, Schedule 3, para. 3.

³¹ Criminal Procedure and Investigations Act 1996, s.41; Criminal Procedure and Investigations Act 1996, s.37; Criminal Justice Act 1987, s.11.

³² Criminal Justice Act 2003, s.71.

³³ Crime and Courts Act 2013, Schedule 17, para. 12. This power was exercised in relation to the deferred prosecution agreement (DPA) between Serco and the Serious Fraud Office (SFO). In that case the judge delayed publication of the statement of facts (which are often published with the DPA) in order that the SFO’s investigation into potential criminal conduct committed by individuals was not prejudiced.

³⁴ R (Guardian News and Media Limited) v. City of Westminster Magistrates’ Court [2012] EWCA Civ 420.

³⁵ ibid., at 79.

³⁶ ibid., at 85.

³⁷ Schedule 25, para. 85A(1).

³⁸ Schedule 25, para. 85A(2).

³⁹ The videoconferencing technology rolled out by HM Courts and Tribunals Service to support remote hearings across England and Wales.

⁴⁰ https://www.gov.uk/guidance/hmcts-services-remote-hearing-channels-crime.