Naming Suspects Before Charge: A Decision Guide

The starting point: privacy attaches before charge

The controlling authority is Bloomberg LP v ZXC [2022] UKSC 5, decided on 16 February 2022 by Lord Reed, Lord Lloyd-Jones, Lord Sales, Lord Hamblen and Lord Stephens, with a sole joint judgment from Lord Hamblen and Lord Stephens. The Supreme Court unanimously held that, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. The court described this as a “general rule or legitimate starting point” rather than an absolute bar. Our case brief is at ZXC v Bloomberg LP.

Misuse of private information is a two-stage test. Stage one asks whether the claimant objectively has a reasonable expectation of privacy in the information, considering all the circumstances, likely including the factors identified in Murray v Express Newspapers plc[2008] EWCA Civ 446 at paragraph 36. If it does, stage two asks whether that expectation is outweighed by the publisher’s Article 10 right to freedom of expression, balancing it against the claimant’s Article 8 right with due regard to section 12 of the Human Rights Act 1998. ZXC settles stage one for this category of information; it does not settle stage two, which is where your journalism has to do its work.

Four arguments Bloomberg ran and lost are worth knowing, because they are the arguments most newsrooms instinctively reach for. That the public understands the presumption of innocence: the court held this is a legal presumption applicable to criminal trials, and the real question is how others, including a person’s inner circle, react to learning that they are under investigation. That defamation principles about the reasonable reader distinguishing suspicion from guilt should be read across: they should not, because misuse of private information protects private life regardless of the truth or falsity of the information. That business activity falls outside Article 8: it does not, and reputation is within the scope of Article 8 private life where the attack attains a certain level of seriousness. And that the claimant’s standing as a businessman in a large public company defeated the expectation: his status widens the limits of acceptable criticism, but “there is a limit”, and the factor is not determinative.

How we got here: Richard v BBC

Richard v The British Broadcasting Corporation (BBC) & Anor[2018] EWHC 1837 (Ch) was decided by Mr Justice Mann on 18 July 2018 and is the case that changed newsroom practice. A BBC reporter learned of a South Yorkshire Police investigation into Sir Cliff Richard from a confidential source, obtained advance notice of the search of his home, and the corporation covered the search of 14 August 2014 live, including helicopter footage. The investigation ended in June 2016 with no charges. South Yorkshire Police settled in May 2017, accepting liability, apologising and paying £400,000 in damages plus £300,000 on account of costs.

At paragraph 248 Mann J ruled that “on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation”, because the fact of an investigation “as a general rule, will of itself carry some stigma, no matter how often one says it should not”. The qualification at paragraph 251 is the one journalists most often miss: “That is not to say, and I do not find, that there is an invariable right to privacy. There may be all sorts of reasons why, in a given case, there is no reasonable expectation of privacy, or why an original reasonable expectation is displaced. But in my view the legitimate expectation is the starting point.”

The award was £190,000 in general damages and a separate £20,000 in aggravated damages, reflecting the BBC submitting its own coverage for a journalism award, giving a total of £210,000 with special damages left to a further inquiry and liability apportioned 65:35 between the BBC and the force. Four years later the Supreme Court in ZXC put the same principle beyond argument. Read the two together: Richard supplies the reasoning and the cost of getting it wrong, ZXC supplies the binding rule.

The counterweight: open justice and Khuja

Khuja v Times Newspapers Ltd[2017] UKSC 49 is the limit case, and it is why “never name an uncharged suspect” is wrong as a rule of thumb. The appellant was arrested, bailed and then de-arrested without charge in connection with Thames Valley Police’s Operation Bullfinch, but his first name and his attendance at an identity parade were referred to at the public trial of nine other men. By a majority of five to two the Supreme Court refused him anonymity. Lord Sumption held that matters discussed at a public trial “are not matters about which he can have had any reasonable expectation of privacy”, and that the public interest in press reporting of judicial proceedings extends to the identity of the person concerned.

He did not rule out a pre-emptive injunction where the information was genuinely private or there was no sufficiently substantial public interest in publication, but said such cases “will be rare in relation to the reporting of public court proceedings”. The practical distinction is therefore about provenance, not about charge status: information aired in open court is reportable under the open justice principle, subject to any reporting restriction; information you have from a leak, a source, a doorstep or a neighbour is not. Our brief is at Khuja v Times Newspapers Ltd, and the wider framework is in our reporting restrictions overview.

What the police will and will not confirm

The College of Policing Authorised Professional Practice on Arrests, charges and judicial outcomes, first published on 23 February 2026, governs what a force’s corporate communications department may tell you. It is guidance for the police, not law binding on you, but it explains why your calls come back the way they do — and the Supreme Court in ZXC treated the uniform general practice of state investigatory bodies not to identify people before charge as part of the reason the privacy expectation exists.

Three further points matter for crime desks. The APP tells forces that “individuals who are, or may be, involved in an investigation should not be identified”, and to treat a speculative list of names the same way as a single-name arrest enquiry. Where no further action is taken, forces can confirm that a case did not meet the evidential threshold and whether the CPS was consulted, and should proactively communicate an NFA or a non-conviction outcome where the arrest or charge was proactively communicated in the first place — which is the hook for the follow-up piece you owe the subject. And identities of people dealt with by out-of-court disposals such as cautions and fixed penalties should not be released or confirmed at all.

The decision tree, stage by stage

Charge status is the single biggest variable, but it is not the only one. Work through the stage you are actually at, and note that the contempt clock and the privacy clock start at different points.

Contempt: the clock starts at arrest

Journalists frequently assume contempt risk begins at charge. It does not. Schedule 1 to the Contempt of Court Act 1981 makes criminal proceedings active from the relevant initial step until they are concluded, and paragraph 4 lists those steps as arrest without warrant; the issue (in Scotland, grant) of a warrant for arrest; the issue of a summons to appear; the service of an indictment or other document specifying the charge; and, except in Scotland, oral charge. Arrest is therefore the trigger.

Section 2(3) confines the strict liability rule to publications made while proceedings are active, and section 2(1) defines publication broadly enough to catch a speech, a broadcast or “other communication in whatever form” addressed to the public or any section of it — which includes your social accounts and your newsletter. Under paragraph 5 of Schedule 1 proceedings are concluded by acquittal or sentence, by any other verdict, finding, order or decision which puts an end to them, or by discontinuance or operation of law. One narrow time limit exists: paragraph 11 provides that proceedings which become active on the issue or grant of an arrest warrant cease to be active after twelve months from the date of the warrant unless the person is arrested in that period, becoming active again on any later arrest. There is no equivalent twelve-month cut-off for an arrest without warrant. For the full framework, including the section 5 discussion-of-public-affairs exception and the difference between statutory and common law contempt, see our contempt in active proceedings guide and common law versus statutory contempt.

The defamation dimension

Privacy and defamation are separate torts with different elements — the Supreme Court in ZXC expressly refused to read defamation concepts across into misuse of private information — but a pre-charge naming story usually attracts both. Reporting that a named person is under investigation for an offence conveys a defamatory imputation, and repeating an allegation made by someone else is publication of that allegation by you.

Meaning matters enormously here. In Chase v News Group Newspapers Ltd[2002] EWCA Civ 1772, Brooke LJ identified three levels of defamatory allegation: broadly, that the claimant is guilty of the act; that there are reasonable grounds to suspect that the claimant is guilty of the act; and that there are grounds to investigate whether the claimant has committed it. These are a helpful shorthand rather than a straitjacket, but they are the frame a court will use. Write at the level your evidence supports, and check that the headline, standfirst, picture caption and social copy do not climb a level above the body text — that gap is where most suspect-naming claims are born.

Where truth is not provable, section 4 of the Defamation Act 2013 requires two things: that the statement was, or formed part of, a statement on a matter of public interest, and that you reasonably believed publishing it was in the public interest. The court must have regard to all the circumstances and must make such allowance for editorial judgement as it considers appropriate; the defence applies to fact and opinion alike; and section 4(6) abolished the common law Reynolds defence it replaced. Section 4(3) is the reportage provision: where the statement was part of an accurate and impartial account of a dispute to which the claimant was a party, the court disregards any failure to verify the imputation.

The practical consequence is that your public interest reasoning has to exist in writing, dated, before publication — the same file that will carry your Article 10 case at stage two of the privacy balance. See our detailed section 4 guide and defamation risk checklist.

Photographs, footage and the doorstep

• 1A picture identifies more completely than a name and is harder to walk back. Treat publishing a photograph of an uncharged suspect as a higher-risk act than naming them, not a lesser one — in Richard v BBC the aerial footage of the search was central to both liability and quantum.
• 2Filming a police search from the air, from a drone, or from outside a private home aggregates location, home and investigation status into a single image. Each element on its own may be innocuous; together they are exactly the private information ZXC protects.
• 3Clause 2(iii) of the Editors’ Code makes it unacceptable to photograph individuals without consent in public or private places where there is a reasonable expectation of privacy. Clause 3 constrains persistent pursuit and requires you to desist when asked and to identify yourself.
• 4Library pictures pulled to illustrate an arrest story carry misidentification risk. Confirm the person in the frame is the person in the copy before it leaves the desk. And note that accepting a force’s offer of enhanced media access to an operation does not transfer the privacy risk to the police: Richard v BBC apportioned liability between broadcaster and force 65:35, with the broadcaster carrying the larger share.

Jigsaw identification and social media pickup

You can identify someone without naming them. Job title plus employer plus street plus age is a name in all but form, and the College of Policing APP recognises the same problem from the other side: where releasing information on arrest would confirm identity, forces are told not to release it and to fall back on fewer specific details. Apply the same discipline to your own copy, and apply it across the whole day’s output, not one article — the jigsaw is assembled from your live blog, your picture caption, your push alert and your rival’s follow-up.

The risk runs in both directions in sexual offence cases: identifying the suspect can identify the complainant, whose lifetime anonymity under the Sexual Offences (Amendment) Act 1992 attaches from the moment an allegation is made, not from charge. Where suspect and complainant are related, colleagues, or from the same small institution, naming either can breach the other’s protection — our sexual offence anonymity guidesets out the mechanics. On pickup, a name circulating on social media is not a reason to publish it, and mainstream repetition converts a rumour into a fact in the reader’s mind. The APP tells forces to consider mitigation where a suspect’s name has been published “either correctly or incorrectly”, an official acknowledgement that crowd-sourced names are often the wrong person. Prior circulation is a relevant factor in the Article 8 versus Article 10 balance and under Clause 2(ii) of the Editors’ Code, but it is a factor, not a defence.

When naming before charge can be justified

ZXC sets a starting point, not a prohibition. These are the factual patterns in which a stage-two Article 10 case is realistically arguable. None is a licence on its own, and each needs to be recorded in the editorial file at the time.

• ›The information was aired in open court and is not covered by a reporting restriction — the Khuja position.
• ›The person or their representative has themselves put the investigation into the public domain, or confirmed it on the record.
• ›The police have named them for a legitimate policing purpose — a threat to life, prevention or detection of crime, or a public warning about a wanted person — and you are reporting that official act.
• ›Publication is necessary to warn identifiable people at risk, or to reach further complainants or witnesses whose evidence could not otherwise be gathered.
• ›The story is about the conduct of the investigation itself — failure to investigate, undue delay, conflict of interest — and cannot be told coherently without identifying who is under investigation.
• ›The subject holds public office or exercises significant public power and the alleged conduct goes directly to that role — remembering that public status widens the limits of acceptable criticism but does not remove them, and that the section 4(3) reportage route requires genuine neutrality, not a one-sided write-through.

Red flags and common mistakes

• ⚠The only justification anyone can articulate is that the name is interesting, or that a competitor has it.
• ⚠The public interest reasoning is being written after the decision to publish rather than before it.
• ⚠Your source is a leak of a confidential law enforcement document — in ZXC the confidentiality of the letter of request was treated as a relevant and important factor at both stages of the test.
• ⚠The headline asserts guilt while the body text says "under investigation" — a Chase level 1 headline on a level 3 story.
• ⚠You are relying on a police force having "not denied" it. "We neither confirm nor deny" is the APP-mandated answer and confirms nothing.
• ⚠The subject has not been approached, or was given a deadline too short for a meaningful response.
• ⚠Nobody has checked whether identifying the suspect identifies a complainant with statutory anonymity.
• ⚠The person was arrested months ago and nothing has happened since — delay weakens, not strengthens, the case for naming.
• ⚠Someone is arguing that a public figure has forfeited privacy, or that because the information is true there is no privacy claim. Public status widens the limits of acceptable criticism but ZXC held "there is a limit", and truth is irrelevant to misuse of private information.
• ⚠The original article is still live after an NFA or acquittal with no update and no equally prominent outcome piece.

Pre-publication checklist

• I have established the exact stage: under investigation, arrested, RUI, bailed, charged, or summonsed — and I can evidence it.
• I have identified where each piece of information came from, and separated what was aired in open court from what was not.
• I have written down the specific public interest in identifying this person now, and why a non-identifying version of the story would not serve it.
• I have applied the two-stage test consciously: reasonable expectation of privacy, then Article 8 against Article 10 with section 12 HRA in mind.
• I have checked the contempt position: whether proceedings are active under Schedule 1, and whether anything in my copy could seriously prejudice them.
• I have pitched the defamatory meaning at the level my evidence supports, and checked the headline, standfirst, captions and social copy against it.
• I have checked for automatic anonymity and any reporting restriction, and run a jigsaw check across everything we are publishing today — not just this article.
• I have put the allegations to the subject and given a fair, documented opportunity to respond.
• I have a plan and a named owner for reporting the outcome — including NFA or acquittal — with equal prominence.
• For anything marginal: a media lawyer has read the copy before publication.

The regulatory layer

A pre-charge naming decision can be right in law and still cost you a ruling. Under the Editors’ Code of Practice, Clause 1 requires care not to publish inaccurate, misleading or distorted information; Clause 2 requires editors to justify intrusions into private life without consent, taking account of the complainant’s own disclosures and the extent to which material is already in the public domain; and Clause 9 provides that relatives or friends of persons convicted or accused of crime should not generally be identified without consent unless genuinely relevant, and that editors should generally avoid naming under-18s after arrest but before a youth court appearance.

The Code’s public interest section covers detecting or exposing crime or serious impropriety, protecting public health or safety, protecting the public from being misled, disclosing a failure to comply with an obligation, disclosing a miscarriage of justice, and contributing to a matter of public debate — and it requires editors invoking it to demonstrate that they reasonably believed publication would both serve and be proportionate to the public interest, and to explain how they reached that decision at the time. That is the same contemporaneous record section 4 of the Defamation Act and stage two of the privacy balance will ask for. Write it once, properly. See our regulator comparison and public interest defence guide.

Frequently asked questions