Carson McDowell acts for Belfast Telegraph & Irish News to strike down NI Assembly’s suspect anonymity laws

In October, Carson McDowell brought you news of the commencement of statutory anonymity for those accused of sexual offences, for life and beyond, unless charged.

The relevant provisions, found in S.12 – 16 of Justice (Sexual Offences and Trafficking Victims) Act (NI) 2022, conferred lifetime + 25 years anonymity to those accused of sexual offences, with a breach leaving an editor potentially facing six months’ imprisonment and/or a fine of £5,000.

Mediahuis, publisher of the Belfast Telegraph, joined with The Irish News to challenge the lawfulness of the provisions, as did a number of London media organisations, including The Times and the BBC, in a separate application.

On Friday last, In re Mediahuis & Others (Justice (Sexual offences and Trafficking Victims) Act (NI) 2022), Humphreys J granted a declaration that the relevant provisions were not law “since they are outside the legislative competence of the Northern Ireland Assembly as they are incompatible with the article 10 ECHR rights of the applicants”.

Evidence filed by the Belfast Telegraph noted the provisions were capable of producing a number of unusual situations, including the inability of the media in Northern Ireland, without risking imprisonment, to:

• identify Jimmy Savile in connection with his crimes;
• identify high profile individuals (e.g. politicians or senior police officers) under investigation for sexual offences, no matter the circumstances;
• identify deceased clergymen, whose actions resulted in public damages settlements by their parent churches with victims, following Court proceedings [41 – 47]

The Court drew specific attention to the last of these examples, noting the Belfast Telegraph had received a legal letter referring to the prohibition following publication of such a news report. [48]

Finding in favour of the applicants’ proportionality challenge, the Court noted “there had been a disproportionate interference with the article 10 rights of the applicants by:

(i) Criminalising publication without recognising any public interest defence; and

(ii) Failing to provide for a process by which media organisations may apply to the court to have the prohibition on publication modified or revoked on public interest grounds”. [116]

Similarly, the Court found in favour of the applicants’ contention the provisions were not in accordance with law, determining:

“Under the provisions of the Act, media organisations have no access to the court to test whether the interference with the article 10 right in any given situation is disproportionate and therefore unlawful. There is no public interest defence, nor is any media organisation able to apply to the court, during the suspect’s lifetime, for modification or revocation of the prohibition. There is no role for the court, or any other effective remedy, to enable the article 10 rights of the media to be protected.

The blanket ban on publication means that no court can carry out the balancing act between the ECHR rights of the suspect and the article 10 rights of the publisher in the public interest. There are no safeguards provided which enable proportionality to be examined. The legislative provisions therefore also fall at this hurdle – they are not “in accordance with law.” [124 – 125]

The Court did not, however, accept the applicants’ case that the retrospective nature of the provisions upset the fair balance in a proportionality exercise, given the limited retrospectivity at play. A common law challenge, arising from a perceived lack of procedural fairness owing to the absence of a targeted/specialist consultation process, was also dismissed, in light of the extensive engagement both in the Gillen Review, and the public legislative process.

Concluding, Humphreys J recognised both the importance of public interest journalism, and the need for appropriate safeguards where any attempt is made to criminalise publication:

“Public interest journalism serves a vital role in any democratic society. The role of the press as watchdog, and the role of journalists in facilitating and prompting police investigations is fully evidenced in these cases;

The statutory provisions represent a disproportionate interference by reason of the criminalisation of publication in the absence of a public interest defence and by reason of the lack of an ability on the part of the media to apply to the court to have the prohibition on publication modified or revoked on public interest grounds.” [132].

In the post Bloomberg era, the reasoning behind the Department of Justice’s decision to create a criminal offence to protect the same interests, and to extend its applicability to a quarter of a century after death, remains opaque. So too the decision not to include a public interest defence, or afford media organisations the ability to disapply the prohibition whilst a suspect lives. Indeed, the Court noted that “the rationale put forward by the respondent in this case falls far short of [the] threshold” that such restrictions on freedom of expression must be “strictly construed” and “convincingly established”. [103]

The Respondent may appeal, or seek to introduce similar legislative provisions. If the latter, the Court has delivered a comprehensive exposition of the importance of public interest journalism, the risk of attempts to criminalise publication, and the necessity of appropriate safeguards in the area. One hopes it is heeded.

Fergal McGoldrick and Hannah Porter from Carson McDowell’s Media, Communications and Reputation team, instructing David Dunlop KC and Laura Curran, acted for the first applicants, Mediahuis/The Irish News, in these applications.

PICTURED: Belfast Telegraph/Sunday Independent Northern Ireland editor Sam McBride, Irish News assistant editor Aeneas Bonner, Belfast Telegraph deputy editor-in-chief Martin Breen and solicitor Fergal McGoldrick. © Kevin Scott-Mediahuis