In Part 1, we looked at judgments from the Crown Court and High Court in Northern Ireland dealing with a source disclosure order and an interim application concerning Facebook. In Part 2, we consider the Court of Appeal’s judgment involving reporting restriction orders and Sir John Gillen’s report into the law on serious sexual offences.
In The Queen v HNC  NICA 33 reporting restriction orders had been made under section 4(2) of the Contempt of Court Act 1981, Article 3 ECHR and section 6 of the Human Rights Act 1998. These related to criminal proceedings in which the accused was charged on indictment, but was found to be unfit for trial. Consequently a ‘fact finding trial’ was due to proceed, and the reporting restriction orders prohibited reporting of this trial until its conclusion. The trial judge declined to discharge the reporting restriction orders following an application brought by various media organisations, who then sought leave to appeal this decision.
The media organisations argued that the trial judge had failed to consider mitigating measures that would allow open justice to be maintained. Stephens LJ, delivering the Court of Appeal judgment, dismissed the application for leave to appeal. The appeal court considered that if leave was granted, there would undoubtedly be a further application from the accused to stay the fact finding trial, which would be prejudicial to the administration of justice. The accused had previously sought to stay the trial by claiming the increased stress would significantly affect his prognosis and shorten his life expectancy. Dismissing the accused’s application, the trial judge implemented a number of measures, one of which was the reporting restriction orders.
The appeal court did suggest that the trial judge could have put measures in place to allow the media organisations to report on the trial contemporaneously. This included, for example, prohibiting publication of any photographs of the accused. However, as this was not raised at first instance and therefore not considered by the trial judge, the Court of Appeal refused to allow this argument to be considered.
The ‘Gillen review’
In April 2018, the Criminal Justice Board commissioned an independent review of the law and procedures relating to serious sexual offences in Northern Ireland. This was led by Sir John Gillen, and the findings were published in May 2019 (a copy of the report is available here).
One of the recommendations, which would directly affect media reporting on such offences, includes prohibiting publication of the accused’s identity pre-charge (except in rare instances where it can be established it is in the public interest to do so). The findings also suggest that media organisations with an online presence should turn off and disable public comments about a trial in the course of live proceedings, something which is already the practice in England and Wales.
A number of recommendations in the report are directed towards internet intermediaries. This includes fixing platforms with liability in situations where notification is given of material that breaches an injunction, or risks prejudice to a trial, and the material is not taken down within 24 hours. While the report doesn’t delve into the critical issue of notification in any detail, it does suggest that the Northern Ireland Attorney General work with internet intermediaries in relation to their ‘notice and takedown’ mechanisms, to allow effective and prompt reporting of unlawful content.
The report also recommends placing an obligation on social media platforms to take reasonable steps to identify and remove potentially prejudicial material in advance of a trial. Law enforcement agencies would be tasked with notifying platforms when it is anticipated that adverse social media comments, prejudicial to the fairness of a trial, may arise. It is not clear how this would work in practice, particularly as it could conflict with the prohibition of a general monitoring obligation on internet intermediaries under Article 15 of the E-Commerce Directive.
That said, Sir John Gillen concludes that these recommendations should be considered on a cross-jurisdictional basis, and that the government’s findings in the Online Harms White Paper (draft legislation is expected to be published later this year) should be monitored for any steps relevant to Northern Ireland.
Other developments in 2019
Two Northern Ireland politicians were at the centre of defamation cases reported widely in the local press. An Irish News journalist received an apology and charity donation from a former DUP MLA over allegations published on a blog of which he was the site operator (reported here).
In another case, Stoke City footballer James McClean received an apology and a settlement figure of £63,000 after a Belfast councillor called him a ”super provo” on a local radio programme (reported here).
Ciaran O’Shiel is a senior associate and Charlotte Turk is a solicitor in the media litigation team at A&L Goodbody.