This case is illustrative of a set of facts where the legitimate starting point of a reasonable expectation of privacy in respect of a criminal investigation at pre-charge stage under English law can be can be departed from:
Whilst a reasonable expectation of privacy in relation to a police investigation is the starting point, on the particular and somewhat special facts of this case, I am unable to conclude that by June 2019 such an expectation subsisted in relation to the information that the CPS were considering a charging decision in relation to the Claimant.at p.147, Knowles J.
Note reference by the judge to the “special facts” of the case. For the special facts this case turns on in relation to the article 8 grounds see p.148-151.
The case concerned the passing of a file from the CPS and the disclosure of that fact to a third party. This was objected to by the claimant on data protection and privacy grounds.
Whilst the disclosure did not include the name of the claimant, it was found that “personal data can relate to more than one person and does not have to relate exclusively to one data subject, particularly when the group referred to is small.”- p.101
In this case, the operation in question, Operation Sheridan, concerned only eight suspects, of which the claimant was one.
Accordingly in finding for the claimant it was considered that “this data breach was at the lowest end of the spectrum. Taking all matters together in the round, I award the Claimant damages of £250. I will also make a declaration that the Defendant breached the Claimant’s rights under Part 3 of the DPA 2018.” – at p.169
However, in relation to a claim for breach of article 8, as p.147 reflects, the claim was unsuccessful. This was due to the judge considering that there were “special facts” this case turns on in relation to the application of article 8, meriting departure from starting point of there being a reasonable expectation of privacy in criminal inversitgations at pre-charge stage (in particular, see p.148-151).
Such “special facts” included, in combination: an ongoing investigation for many years, the Claimant’s own waiver of their right to privacy by making details of the case at pre-charge stage public themselves (including to media outlets), further proceedings after that intial disclosure, including the Claimant’s arrest in 2017 and further passing of police files to the CPS in 2018 in relation to that same Operation Sheridan.
This case is illustrative of how privacy cases in light of ZXC fall within a spectrum, allowing for circumstances in which the legitimate starting point it established can be departed from, albeit this case turning on “special facts” which are clearly, in this instance, narrow and particularly unique. It also clarifies what facts are considered to give rise to a data breach “at the lowest end of the spectrum” and that the value of such breaches is reflected in nominal damages awards- in this case £250 and a declaration.