Confidential Information

Case Note: Bunn v British Broadcasting Corporation and Another

Jane Lambert

1 Dec 1999

Updated 23 Dec 2005

The confidential nature of statements to the police under caution, the freedom of the press and the circumstances in which a statement to the police ceases to be confidential were considered by Lightman J in Bunn v British Broadcasting Corporation and Another  (Chancery Division: Lightman J 19 June 1998), an ex parte application to restrain the BBC from broadcasting extracts from such a statement.

The Facts

The plaintiff, Robert Bunn ("Mr. Bunn"), Mr. Bunn had been deputy managing director (finance) of Robert Maxwell Group Plc and was one of the persons the police investigated after Mr. Maxwell’s death. He made a statement in the presence of his solicitor under caution. Although he was charged with various offences he was acquitted. His statement was never read out aloud in court though the trial judge read it to himself. After the first trial the Serious Fraud Office ("the SFO") tried to bring further proceedings in which the statement would have been used but Buckley J stayed these on the 19th September 1996. Civil proceedings were launched in which Millett J found that Mr. Bunn had misappropriated certain shares, but his finding was never reported. Because of extensive public criticism of the SFO arising from its failure to secure a conviction in the Maxwell case, the BBC decided to present a series of television programmes about the SFO entitled "The Fraudbusters". Lightman J observed that the programmes were a serious piece of journalism made with the assistance of the SFO. Although the programme in which parts of Mr. Bunn’s statement was to be disclosed was not wholly or mainly concerned with Mr Bunn, the programme maker argued that the SFO had reasonable grounds for proceeding with a second criminal trial on the basis of "admissions" Mr Bunn was alleged to have made. The BBC notified Mr. Bunn that it intended to broadcast the programme in accordance with the producers’ guidelines. Mr. Bunn tried to persuade the Corporation to drop the part that concerned him, but it refused to do so. Meanwhile, Gollancz had already published and distributed a hardback edition of an accompanying book. At Mr. Bunn’s request, it froze distribution and stopped production of a paperback edition.

The Judgment

The judge’s starting point was that press freedom required a presumption in favour of investigative journalists to explore and present material that they fairly considered to of public concern and interest such as the workings and efficiency of the SFO. The onus was on Mr Bunn to rebut that presumption. He sought to do so by contending that his statement was made in confidence for the purposes of a criminal investigation. Had the information been confidential at the time of the application, Mr. Bunn might well have had a case. Though there appeared to be no authority directly addressing the status of statements made by accused persons under caution, his lordship had no doubt that such statements were confidential because of the relationship between an accused and the police. Information given under caution is provided by the accused to assist an investigation. It is no different from information provided by informants which is clearly confidential. It is clearly implicit in the relationship that such information is to be used only for the purposes of the investigation and not for extraneous purposes such as a press leak. Such disclosure could not have been justified by any public interest. The difficulty for Mr. Bunn was that his statement was already in the public domain. It had been read by the trial judge at the Maxwell trial. Nothing turned on the fact that it had not been read out aloud. Moreover, Gollancz had already distributed a large number of copies of its book. Furthermore, Mr. Bunn had waited until the very last moment to move the Court as a result of which the BBC had incurred some expense, which could not be recouped under Mr. Bunn’s undertaking as to damages. For all those reasons, Lightman J dismissed the application..

 

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