In the dying days of the last Northern Ireland Executive the Justice (Sexual Offences and Trafficking Victims) Act (NI) 2022 was passed, implementing many of the recommendations of the Gillen Review Report into the law and procedures in serious sexual offences in NI.
That Report, authored by retired Court of Appeal Judge Sir John Gillen, was commissioned in the aftermath of the trial of four individuals arising from allegations of rape and other serious sexual offences. The trial process was the subject of intense media coverage as two of the defendants (all of whom were acquitted) were well known Ulster and Irish international rugby players.
On 28 September 2023 what might be considered one of the most controversial changes brought about by the Act enters into force, re-introducing anonymity for suspects of rape and other sexual offences (the legislative provision for anonymity for those suspected of rape having been repealed in 1994).
From today, it will be a criminal offence to include in a publication any matter if that matter 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 a sexual offence.
The prohibition on publishing material likely to identify a suspect is engaged once (a) an allegation that the person has committed a sexual offence is made to police or (b) the police have taken any step to investigate whether a person has committed a sexual offence, but no allegation has been made to police.
The pieces of information specified in the Act include the suspect’s name, address, workplace, school and their image. Penalties for breaching the prohibition include imprisonment of up to six months and/or a fine up to £5,000.
The prohibition expires automatically where a summons or arrest warrant is issued against the suspect in respect of the offence, the suspect is charged with the offence after being taken into custody without a warrant, an indictment charging the suspect with the offence is presented, or the Magistrates’ Court commits the suspect to the Crown Court for trial on a new charge alleging the offence.
If there is no prosecution the prohibition remains in force until 25 years after the death of the suspect, at which point it expires automatically, unless extended.
Provision is made for a Court to disapply the prohibition, but during the lifetime of the suspect only the suspect or the Chief Constable may make such an application, and the Court will grant it only if to do so would be in the interests of justice or otherwise in the public interest. After the suspect’s death (and before automatic expiration) a media organisation can make a similar application to the Court, as can a relative or personal representative of the suspect (who can also apply to extend it).
The offences to which S.12 will apply are numerous, and include sexual offences of the most serious nature such as rape, to new offences such as ‘sending an unwanted sexual image’, with the Act detailing the relevant offences in S.13.
S.12 also indicates that it does not matter whether the allegation is made or the step is taken, before or after the section comes into operation for it to be applicable, raising a query on the contemporaneous treatment of allegations that may have been made about an individual, perhaps even decades ago.
Overall, this change in the law marks a significant departure for reporting restrictions in Northern Ireland, particularly when compared to the legal position in England and Wales. True it is that since Bloomberg most media organisations have, save in exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such identification is in the public interest.
However, this change in the law in Northern Ireland removes that discretion in respect of allegations or police investigations of sexual offences, and converts the potential legal wrong from civil to criminal, with the prospect of a conviction and a potential prison sentence and/or fine for those who transgress.
Fergal McGoldrick is a Senior Associate at Carson McDowell LLP in Belfast, specialising in media, communications and reputation.