There are massive questions for Naomi Long over a perverse and absurd law she proposed

Posted by Jim on June 2, 2024

A judge was left to clear up a dangerous mess created by MLAs who then failed to fix it, even when they knew it was disastrous

Sam McBride

Yesterday at 03:00

What unfolded in Belfast High Court yesterday morning was a devastating exposure of the failure of the Stormont system: The Executive and legislature had created a gross injustice and then failed to rectify it, leaving a judge to do so for them.

Last September, part of a new Stormont law came into force which made it a jailable offence to identify anyone who has been investigated by police but not charged in relation to sexual offence allegations.

An individual in that position — such as the notorious paedophile Jimmy Savile — could not be named during their lifetime, with no chance for an appeal by anyone other than the police.

They were protected even after death for 25 years, unless the media or a victim went to a court and succeeded in getting permission.

It was an outrageous situation, criminalising both journalists and victims of sexual abuse who chose to waive their right to anonymity.

One MLA, Robbie Butler, to his credit, accepted that he had made an error in voting for the law, which had sailed through unanimously with scant scrutiny, and said he would bring a private member’s bill to the Assembly to have it overturned.

The TUV and SDLP said they would support the law being changed. But neither the DUP, Sinn Fein nor Alliance committed to repealing this situation. The arithmetic of the Assembly meant that without the support of bigger parties, this law wouldn’t be changed.

Late last year, the Belfast Telegraph began a legal challenge which was joined by The Irish News. A separate case was taken by The Times, the BBC, and other London-based media organisations.

For a regional newspaper like this, judicially reviewing a law is virtually unheard of. It involves huge expense, and the prospects of success are scant.

Even a very bad law is unlikely to be struck down by a judge unless it involves some glaring illegality.

Yesterday’s culmination of the case which began before Christmas confirmed such glaring illegality.

Legal challenge by Belfast Telegraph to sex offence suspects anonymity successfully overturns law

It was 45 minutes into Mr Justice Humphreys’ judgment when it became fully clear that he was finding in our favour.

In the wood-panelled surroundings of courtroom one of the Kings Bench, the judge said that Stormont’s failure to recognise the impact on public interest journalism “means that a fair balance between competing rights has not been struck”.

In classic Stormont fashion, there was what the judge described as a lack of “contemporaneous explanations” as to why MLAs did what they did. There were arguments made in court which weren’t backed up by any record from the time. The judge found that unconvincing.

There’s nothing in that which suggests any dark conspiracy; rather, this is how Stormont operates, with a culture of oral government where basic record keeping is either an afterthought or in some cases actively discouraged. One of the many problems with such a situation is that a department can struggle to defend itself in court.

As the judge went on, his language became more explicit, and politely excoriating.

The department argued that it was essentially none of the court’s business how the Assembly had come to make the law. The department, quoting from the legislation which established devolution, emphasised that the way in which MLAs went about their work “shall not be called into question in any legal proceedings”.

Mr Justice Humphreys dismissed this, making clear he wasn’t questioning the validity of Assembly proceedings, but examining the “quality” of MLAs’ actions.

Having done so, he found proper scrutiny was “manifestly lacking” and “clear shortcomings” in the debate.

In essence, MLAs hadn’t even considered the serious problems of the law they were passing. What he didn’t say, but which is equally concerning in a political sense, is that four months after devolution returned, and despite being well aware of the problem, neither the Executive nor the Assembly had acted to rectify the problem.

There was, he said, “disproportionate interference” with the human rights of journalists wishing to publish information which is in the public interest.

That meant that what Stormont had done was “not in accordance with law” because it was contrary to the European Convention on Human Rights.

At a time when journalism is under intense financial and political pressure, Mr Justice Humphreys delivered a refreshing defence of our right to inform you of what is happening around us, saying: “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 [such as Kincora, cited by the Belfast Telegraph in legal argument].”

When the Belfast Telegraph first covered this problem, we discovered that both Mrs Long and her officials had misled the Assembly.

Mrs Long said on the floor of the Assembly that what she was proposing would “implement four recommendations from Sir John Gillen’s report”. That was inaccurate, because Sir John’s report — a review of the law in this area after the high profile rugby rape trial — did not recommend what this legislation did.

When we reported that this misled the Assembly, Mrs Long suggested she might take legal action — despite the fact it was true, despite the fact we had put the evidence to her before publication, and despite the fact we carried her response.

She tweeted: “I refute the accusation that I misled the Assembly and the matter is now with my solicitor for review.”

Two months later, a member of the public asked if Mrs Long had sued. Implicitly accepting that she had not, Mrs Long gave the impression she was still considering it, saying: “Yet. The key word is yet.”

Seven months after the article was published, we have received no legal claim from Mrs Long.

Yesterday’s judgment emphasises the accuracy of what we reported. Mr Justice Humphreys noted a claim made by the barrister representing Mrs Long that part of the provisions now ruled unlawful were necessary to implement the Gillen report.

That, he said, was “quite wrong when one reads the Gillen Review in full”. He went on: “There is nothing in the Gillen Review which supports the contention that only the suspect or the police ought to be able to make such applications [to name a suspect during their lifetime].”

I don’t for a second believe that Mrs Long deliberately misled MLAs. Nor do I believe that this entire episode was anything other than a catastrophic blunder. But when mistakes are pointed out, how someone responds speaks to something much deeper than the issue at hand.

What happened yesterday is also somewhat awkward for Sir John Gillen. In emails disclosed by the Department of Justice (DoJ) under the Freedom of Information Act and given to the court in evidence, Sir John appeared dismissive when concerns about the law were raised.

Last November, in response to this newspaper’s coverage, Sir John told the department it was “quite wrong to suggest, as has been done, that I did not recommend our new law or that Minister Long misled MLAs about my report”.

However, he then went on to state quite clearly “I did not recommend the 25 year prohibition after death” — but he said he was happy with it nonetheless, because it was consistent with “the spirit of my report”.

A report either makes a recommendation or it does not. We are in Kafkaesque territory if a non-existent recommendation can be used as the basis for a dangerous law based on the retrospective assessment of the individual involved that it is in “the spirit” of what they intended.

Another email from Sir John, sent to the DoJ last December, dismissed the significance of the law for a case like that of Jimmy Savile, something raised by this newspaper and the BBC.

He said this was a “disingenuous” example because “inevitably on his death a court would hold it in the public interest to publish his name on application of the media” and that if lots of victims had come forward during his life, “the police might have applied to the court to publish his name”.

He claimed that “Savile would be a classic example of our legislation working perfectly”.

That fundamentally misunderstood the situation. It is only now obvious that Savile was a prolific abuser because of media coverage.

When the first victim came forward, that was not obvious. In circumstances where the abuser is still alive, and is a powerful figure, it is far from clear that the police who had ruled out charging the individual would then go to court to allow the media to name him.

Mr Justice Humphreys recognised that leaving this power solely in the hands of the police was impossibly problematic.

In cases such as Kincora or high-profile cases involving the Metropolitan Police, it is the police who are allegedly either involved in abuse or covering it up to protect agents or for some other improper reason.

To therefore rely solely on the police to do the right thing in those circumstances is illogical and unjust.

Mr Justice Humphreys said that while “in certain cases, the interests of the police and the media may coincide”, that argument failed to recognise that the right to freedom of expression is conferred on everyone, and is “its exercise is not to be determined by agents of the state such as the police except in clearly defined circumstances”.

He said that in media reporting “time may be of the essence”, with the need to make an application rather than seeking to persuade someone else to do so.

He also stressed that “there may be many cases where the interests of the media and the police do not coincide. For instance, the allegations may relate to sexual offences allegedly committed by police officers or may be suggestive of a want of proper police investigation. In such cases it would be entirely inappropriate for media outlets to be obliged to approach the police in an effort to have the prohibition removed.”

This was a withering judgment which has dispensed with a law that should never have been anywhere near the statute book.

What happened here is a textbook example of how good intentions can produce bad law.

It should not have taken newspapers to spend thousands of pounds on a legal challenge in order to be able to say “Jimmy Savile was a paedophile”.

At a time when Stormont’s budget is hopelessly short, how was it that the Department of Justice spend public money seeking to defend such a law?

Mrs Long should now say clearly that she will not be appealing this judgment or seeking to reinstate these provisions through new legislation.

When I asked the minister if she would commit to that, the response was a glorified ‘no comment’. Her department said it “notes the judgment” and is “carefully considering” it.

If Mrs Long does want to appeal, that will now have to secure the approval of the Executive, because it is demonstrably controversial.

That means she would likely need the DUP and Sinn Fein’s support. Both parties have been strikingly quiet on this issue.

Sinn Fein said last November that the law should be “monitored and improvements brought forward where necessary” — but didn’t actually say it believed changes were necessary.

The DUP, to the best of my knowledge, has said nothing on this at all. That’s utterly baffling in political terms.

The DUP leader, Gavin Robinson, is facing a strong challenge from Mrs Long in next months’ General Election. Even prior to that, the DUP was losing ground to Alliance and had every incentive to highlight what was obviously a significant Alliance error.

We took this challenge because it criminalised journalism. But we had the resources to do so; some of those hurt even more personally by this law could not do so.

Many of those who will benefit most from yesterday’s ruling will never even realise that because it would never cross their minds that as victims of sexual crime they could have been jailed for saying so.

An independent media and an independent judiciary are crucial to democracy. Yesterday one acted to uphold the rights of the other.