A new law in Northern Ireland granting anonymity to sex offence suspects is incompatible with press rights to freedom of expression, a High Court judge has ruled.
Mr Justice Humphreys declared it was beyond Stormont’s legislative competence to introduce the controversial Act which has the “chilling effect” of imposing a criminal sanction on public interest journalism.
The verdict represents victory for media organisations including the Belfast Telegraph and The Irish News who challenged legislation that prohibits the naming of alleged perpetrators before they have been charged or until 25 years after their death.
Mr Justice Humphreys found that the relevant sections of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 are “not law” and failed to strike a fair balance between suspects rights to privacy and press freedom.
“The legislation is not in accordance with law and the Northern Ireland Assembly acted outwith the margin of appreciation afforded to it in this field,” he confirmed.
Passed by MLAs following a review carried out by retired judge Sir John Gillen, the Act sets Northern Ireland apart from the rest of the UK and the Republic
Although Sir John recommended a prohibition on identifying those under investigation for sexual crimes prior to being charged, his report did not suggest extending anonymity beyond their deaths.
Concerns have been expressed that the new law could prevent the exposure of notorious offenders and risks silencing victims.
The Irish News and Mediahuis, which publishes the Belfast Telegraph, Sunday Life, Sunday World, Sunday Independent and the Irish Independent – represented in court by David Dunlop KC and Laura Curran as well as Carson McDowell solicitors – joined forces in a bid to have sections of the Act declared legally invalid.
A separate challenge to the lifetime anonymity clause was also taken on behalf of the BBC, Times Media Ltd, Guardian News and Media Ltd and other London-based organisations.
In judicial review proceedings against Stormont’s Department of Justice, conflicting rights to privacy and freedom of expression protected by Articles 8 and 10 of the European Convention on Human Rights (ECHR) came under scrutiny.
It was contended that victims of sex crimes in Northern Ireland could face six months in prison if they publicly name their suspected abusers.
Meanwhile, alleged perpetrators would also unfairly remain protected from identification for up to 25 years after their death.
Disputing any justification for the clause, lawyers representing the media organisations argued that the “sweeping impact” of the restrictions failed to properly balance the wider interest in bringing information to the public’s attention through investigative journalism.
Counsel for the department responded that the press were seeking a radical remedy of having legislation declared so fundamentally flawed that it should be expunged.
He insisted the Act provides legal certainty and a “temporal limitation” on prohibitions which could still be lifted on request to a magistrate.
The court also heard that only the PSNI chief constable or the suspect themselves can seek to have the anonymity clause lifted during their lifetime.
Ruling on the challenge, Mr Justice Humphreys stressed: “The imposition of a criminal sanction on public interest journalism, and the chilling effect occasioned thereby, represents an interference with an Article 10 right which requires the most anxious scrutiny.”
He held that editors and broadcasters should not be exposed to the threat of prosecution and conviction without an opportunity to make the case that it was in the public interest to name a suspected sex offender.
“Interference with the Article 10 rights of journalists in this fashion can only serve to restrict the carrying out of important public interest investigations,” he said.
“Restrictions on the exercise of freedom of expression in this context must be strictly construed and the rationale convincingly established.
“The failure to recognise the category of case where public interest journalism is concerned means that a fair balance between competing rights has not been struck.”
The judge also identified a disproportionate interference with freedom of expression rights by criminalising publication without recognising any public interest defence and in the failure to provide a process for media organisations to apply to a court to have the prohibition lifted.
Declaring that the relevant sections of the Act are unlawful, he added: “They are outside the legislative competence of the Northern Ireland Assembly as they are incompatible with the Article 10 ECHR rights of the applicants.”
In concluding comments, Mr Justice Humphreys stated: “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.
“There were clear shortcomings in the consideration of the Article 10 rights of organisations such as the applicants throughout the legislative process.
“There was no debate around the issue of the public interest, relevant to the anonymity of suspects, nor any consideration of the need for a fair balance of rights.”
A Department of Justice spokesperson said the department noted the judgement and is “carefully considering the detail”.