In a significant legal victory for public interest journalism, a High Court judge has ruled that a controversial new law in Northern Ireland that grants automatic anonymity to people suspected of sexual offences pre-charge — and would have prevented reporting of allegations against Jimmy Savile in the country — is incompatible with press rights to freedom of expression.

The challenge to the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (“the Act”), which received Royal Assent on 27th April 2023, was led by Mediahuis, the publisher of the Belfast Telegraph and Irish Independent, and also involved the independently owned Irish News.

In launching this legal action the claimants were hoping to have certain sections of the Act declared legally invalid, and to seek a judicial review against Stormont’s Department of Justice, which regards the legislation as a key plank of its reform programme for the country.

A separate challenge to the legislation’s lifetime anonymity clause for alleged sex offenders was also taken on behalf of the BBC, Times Media Ltd, Guardian News and Media Ltd.

Following the 2019 Gillen Review Report into the law and procedures in serious sexual offences in Northern Ireland, the Act was passed by Stormont assembly members. It goes much further in stifling the press than similar legislation in the rest of the United Kingdom.

Sections 12-16 of the legislation have proved particularly controversial, in that they prohibit the naming of anyone investigated by, or even reported to, the Police Service of Northern Ireland (PSNI) for any attempt to commit, conspire to commit, or incite to commit a “sexual offence” — which is defined in the legislation to include the offences of assault with intent to commit rape, abuse of position of trust, and possession of a paedophile manual.

As per section 12: “No matter relating to the suspect is to be included in any publication if it is likely to lead members of the public to identify the suspect as a person who is alleged to have, or is suspected of having, committed the offence.” If the suspect is not charged or convicted in their lifetime, and in the absence of a magistrates’ court deciding otherwise, this situation continues until 25 years after their death.

Subsection two of section 12 then states: “For the avoidance of doubt… it does not matter whether the allegation is made… before or after this section comes into operation.” In other words, it applies to events that took place before the legislation received Royal Assent.

Any journalist charged with breaching this gag is liable on summary conviction to imprisonment for a term of up to 6 months, or a fine of up to £5,000.

Troublingly, the Act creates a chilling effect on journalists based outside Northern Ireland who cover public interest stories unfolding in the country, criminalising any publication taking place in Northern Ireland, irrespective of whether the published material was actually written and produced somewhere else.

Writing for the Spectator in the wake of the first stage of the Act’s implementation last year, Prof Andrew Tettenborn noted one of the legislation’s most pernicious effects for public interest journalism, namely, that it generates an interesting moral hazard. “Suppose a paper, having checked its sources meticulously, wishes to publish an inconvenient story that a public figure in Ulster is guilty of repeated indecent assaults,” he says. “No need now for troublesome court injunctions: to suppress the story until it’s stale, all the public figure has to do is get an accomplice to mention the allegation to the police, and it’s immediately an imprisonable crime for anyone to say anything more. Job done.” Quite. 

Disputing any justification for sections 12-16, 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.

It was also argued during the judicial review that under this new law victims of sexual assault could be jailed if they publicly named their suspected abusers.

Counsel for Stormont’s Department of Justice responded that the Act provides legal certainty and a “temporal limitation” on prohibitions which could still be lifted during the suspect’s lifetime on request to a magistrate by a “relevant person”, who is defined in the legislation as either the suspect, or the Chief Constable of the PSNI.

However, in his ruling on the legal challenge brought by Mediahuis and others at Belfast High Court this week, Justice Humphreys found that the relevant sections of the controversial legislation are “not law” and failed to strike a fair balance between suspects’ rights to privacy and press freedom.

“The imposition of a criminal sanction on public interest journalism, and the chilling effect occasioned thereby, represents an interference with an Article 10 [ECHR] right which requires the most anxious scrutiny,” Justice Humphreys said.

He also 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 stressed, adding: “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.”

Responding to the ruling, Eoin Brannigan, Editor-In-Chief of the Belfast Telegraph and Sunday Life said: “This is a significant victory for public interest journalism in Northern Ireland and we’re glad to see common sense prevail.

“This law has affected our work since coming into force. But it is also an important victory for victims who can now tell their stories without fear of being criminalised.”