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The road to hell, so the saying goes, is paved with good intentions. While not quite as dire, well-intentioned laws can nevertheless sometimes have severe consequences. In Re Mediahuis and others’ applications for judicial review [2024] NIKB 45, the Northern Ireland High Court declared 5 sections of one such well-intentioned law, the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (the 2022 Act), invalid. This is the first invalidation of devolved Northern Ireland statutory provisions since the present devolution settlement (the Northern Ireland Act 1998) was enacted 26 years ago. On one level, the judgment is fairly unremarkable – courts are empowered to declare invalid any devolved statute (or statutory provision) which is found to be outwith devolved legislative competence (in this case because of incompatibility with Article 10 of the ECHR) and have done so without raising eyebrows since the advent of devolution in the UK. On a deeper level, however, the judgment and the justification for the relevant provisions of the 2022 Act show the limits of formal equality in addressing substantive injustice.
The judgment
The 2022 Act was a partial response to a wide-ranging review into the legal and policy measures around serious sexual offences in Northern Ireland. This review, carried out by retired Court of Appeal judge Sir John Gillen (the Gillen Review) made several recommendations. Among these, the relevant recommendations for this case were (1) an extension of anonymity for complainants of sexual offences beyond their lifetimes, (2) pre-charge anonymity for suspects of sexual offences and (3) a statutory prohibition on the publication of suspects’ identities pre-charge. The 2022 Act implements (1) (by extending complainant anonymity to 25 years after the complainant dies) but goes much further in implementing (2) and (3) than recommended in the Gillen Report. In respect of (2), the 2022 Act allows suspects to remain anonymous pre-charge on almost the same terms as complainants (during their lifetimes and up to 25 years after death), meaning that if a suspect is never charged, no identifying details may be published until after 25 years following their death. The reporting restriction can be lifted by a court on the application of the police, the suspect or (if the suspect has died) the suspect’s close family, personal representative or anyone interested in reporting any prohibited matters relating to the suspect. Importantly, the press may not apply to lift the reporting restriction during the suspect’s lifetime. On (3), the 2022 Act criminalises the unauthorised publication of suspect details and prescribes a custodial sentence or a fine (or both) for the offence.
Plainly, the 2022 Act represents a significant hurdle to public interest reporting. The pre-charge anonymity is just as extensive as complainant anonymity, and may only be lifted on the application of an extremely limited cohort of people. The justification offered by the Northern Ireland Department of Justice (DoJ), to put the matter mildly, lacked much (if any) persuasiveness. The DoJ pointed to the deleterious impact of publishing or reporting on a sexual offence suspect’s details before charge, with consequences ranging from reputational damage to a threat to life (Mediahuis, para 58). But the Act does not provide a general public interest defence to the offence of unauthorised publication. Such a defence would allow a court to carefully scrutinise two competing issues – any public interest in publishing a suspect’s details pre-charge and that suspect’s rights under the ECHR – and balance them. And nor does the process to lift reporting restrictions include the press as applicants. The rationale for this was virtually non-existent, with the DoJ simply saying:
“It was considered necessary to draw a distinction between who can apply before the death of the suspect and who can apply thereafter to reflect the very different circumstances that apply in those varying circumstances.“
But the Court was not provided with the reasons why this distinction was “considered necessary”. The DoJ further claimed that broadening the cohort of people who could apply to lift the reporting restriction (journalists, for example) during a suspect’s lifetime would “run contrary to the aims of key recommendation 10 [of the Gillen Report].” The relevant recommendation (in full) is:
“There should be no change in the current law concerning publication of the identity of the accused post charge. The identity of the accused should be anonymised pre-charge and the accused should have the right to apply for a judge-alone trial in the rare circumstances where the judge considers it to be in the interests of justice.“
Plainly, the DoJ’s claim about the recommendation was unsustainable.
It is therefore unsurprising that the High Court (Mr Justice Humphreys) should have found the relevant provisions to be a disproportionate interference with Article 10 of the ECHR (the freedom of speech and expression), creating a ‘chilling effect’ on public interest journalism (Mediahuis, para 102).
To be clear, laws with categorical exclusions like the 2022 Act are not, by their categorical exclusions alone, inconsistent with the ECHR. Another devolved Northern Ireland statute – the Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023 (which creates areas around abortion services providers for the safety of their users and staff by fining certain conduct within these areas) emerged from the Supreme Court entirely unscathed, despite containing clear categorical exclusions of certain behaviours (in the form of a strict liability offence in respect of those behaviours). But there are important differences between the 2022 Act and the Abortion Services Act. Chief among these is that fact that the former proscribes unauthorised publication with a custodial sentence, whereas the Abortion Services Act provided for a fine. Moreover, the banned behaviours in the Abortion Services Act are spatially limited to the defined safe access zones around abortion services providers; people are free to oppose such services elsewhere, so the limitations on Article 10 rights are themselves limited. By contrast, the pre-charge publication bar in the 2022 Act applies without distinction as to geography or other factor, and continues for a quarter of a century after a suspect’s death if the suspect is not charged. The limitation on Article 10 rights is thus extreme, and could only be justified (if at all) with the clearest and most compelling reasons. In this, the DoJ ultimately failed.
The erroneous focus on formal equality
The largely unsurprising ECHR assessment of the 2022 Act by the High Court aside, it is curious that pre-charge suspect anonymity and complainant anonymity should have been placed on the same formally equal plane. This is especially the case given that formal equality between complainant anonymity and (general) suspect anonymity was categorically rejected as ‘flawed’ by Sir John Gillen (Gillen Report, para 12.90). Sir John identified a number of reasons why complainants are entitled to greater anonymity – not least to encourage their participation in the criminal justice process. In the same vein, publishing or otherwise disclosing the identity of suspects of sexual offences encourages other potential complainants to come forward in a society where the conviction rate for such offences remains, in the words of Sir John ‘troublingly’, low (by the time Sir John had published his findings, the conviction rate for sexual offences in Northern Ireland had also been falling, see Gillen Report pg. 10).
Moreover, the social stigma associated with being a survivor of sexual violence or abuse acts as a further barrier. Within his Report, Sir John recognises the myriad ways in which different groups of survivors – women of colour (para 13.76), people with disabilities (e.g. paras 13.46 and 13.55) and men (para 13.148) – experience stigma.
All of these factors combine to highlight one of the main themes underlying the Gillen Report and the implementation of its recommendations by the DoJ over the years since the Report’s publication: the need to ensure that ‘one of the worst violations of human dignity’ – sexual crime – is not compounded by the very system designed to hold its perpetrators to account. This is not to discount the experiences of those whose details are published despite not being charged, and the indignities they suffer as a result. But fundamental to this complex and highly sensitive area is the recognition that different people experience different indignities. The formal equality which characterised the invalidated provisions of the 2022 Act, however, completely failed to recognise this reality. Instead, it effectively flattened the many accounts of survivors and suspects found in the 700-odd pages of the Gillen Report into a highly simplistic equation: whatever anonymity was conferred on complainants must also (mostly) be conferred on suspects while they remain uncharged.
This flat plane of formal equality ultimately imperilled the very provisions which were intended to protect the dignity of those people who, whether voluntarily or otherwise, come into contact with the criminal justice system for sexual offences. In the aftermath of the High Court’s judgment, the Northern Ireland Minister of Justice initially indicated that she was considering an appeal, before confirming that no appeal would be pursued. The resultant situation is that the relevant provisions of the 2022 Act – sections 12-16 – are invalid, so there is no bespoke statutory pathway to ensure suspect anonymity at the pre-charge stage (the UK Supreme Court judgment in Bloomberg LP v ZXC [2022] UKSC 5 recognises an ECHR-derived reasonable expectation of privacy at the pre-charge stage).
Without impugning the good intentions of the DoJ, the Assembly and the Northern Ireland Executive, Mediahuisand others should give Ministers and Departments pause for thought. Addressing the substantive (and sometimes life-altering) injustices which are experienced as a result of or in relation to sexual crime requires much greater sensitivity than a simple formal equality.
Anurag Deb is a PhD candidate at Queen’s University Belfast and a paralegal at KRW LAW LLP.
Let us turn to NIHRC and JR295’s applications for judicial review [2024] NIKB 35, in which the High Court disapplied sections of the Illegal Migration Act 2023 (IMA) – the Government’s flagship statute to tackle illegal migration – in Northern Ireland. It is important to understand why, despite some alarming reactions to the judgment, it was both foreseen and avoidable – and why the alarm should be sounded in the Houses of Parliament instead.
In Dillon [2024] NIKB 11, the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Legacy Act) was challenged head on. The Court disapplied a number of provisions of the Act as being in breach of relevant aspects of EU law which continue to apply to Northern Ireland via the Windsor Framework. We have covered the precise EU law aspects of Dillonelsewhere and will only cover the ECHR elements of the judgment in this post. As will become clear, however, there is a critical link between these two main aspects of the judgment.
The disapplication of any part of an Act of the UK Parliament is infrequent enough to be notable. Given that Dillon marks not only some of the most extensive disapplication in history but also is the first such event after Brexit, the decision is significant. But, as we will demonstrate, the decision is not radical. Far from it, much of Mr Justice Colton’s 738-paragraph judgment is an orthodox application of the relevant law.
On 29 November 2019 Usman Khan attended a rehabilitation event at Fishmongers’ Hall and stabbed five people, two fatally. On 2 February 2020 Sudesh Amman attacked two passers-by in Streatham High Road with a knife before being shot dead by police. Both men had previously been convicted of terrorism offences. Both men had been automatically released on licence halfway through their custodial sentences.
Following these attacks, on 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons highlighting that in the interests of public protection immediate action needed to be taken to prevent automatic early release halfway through an offender’s sentence without oversight by the Parole Board. He announced that terrorist offenders would now only be considered for release once they had served two-thirds of their sentence and would not be released before the end of the full custodial term without Parole Board approval. This proposal was passed in England and Wales with the enactment of the Terrorist Offenders (Restriction of Early Release) Act 2020. It was extended to Northern Ireland by the Counter Terrorism and Sentencing Act 2021 (“the Act”).
In 1998, people across the island of Ireland overwhelmingly endorsed the Good Friday Agreement, in a historic decision which signalled hope for a post-sectarian, post-conflict future. The UK Parliament responded to this popular mandate by returning devolution to Northern Ireland. On 24 May 2022, the reverse happened: in the face of vehement opposition from Northern Ireland, the UK Parliament voted to clear the second stage of a Bill that would drastically impact efforts to deal with the Northern Ireland conflict.
The Bill: an overview
There are 4 main parts to the Northern Ireland Troubles (Legacy and Reconciliation) Bill. Part 1 defines ‘the Troubles’, traditionally a phrase used to euphemistically describe the violent political and sectarian conflict which lasted for a little over 3 decades in Northern Ireland. Part 2 establishes a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR), charged with (among other things) reviewing deaths and certain other ‘harmful conduct’ and granting immunity from prosecution to individuals in exchange for information about those individuals’ potentially criminal conduct during the Northern Ireland conflict. Part 3 largely ends criminal investigations, prosecutions, civil actions, inquests and inquiries (except in specific circumstances). Part 4 provides for the compilation of histories of the Northern Ireland conflict.
Though the Bill’s provisions are complex, this post is not concerned primarily with those provisions. Instead, in addition to the Secretary of State’s statement (under section 19(1)(a) of the Human Rights Act 1998) of compliance with Convention rights, the Bill is accompanied by (somewhat unusually) a 36-page ‘European Convention on Human Rights Memorandum‘, written by the Northern Ireland Office. This Memorandum provides the views of the UK Government on why the Bill is Convention-compliant and this is what will be explored here.
Nine of the Hooded Men. Photo by Cyril Byrne/The Irish Times
In one of its final decisions of 2021, McQuillan, McGuigan and McKenna, the UK Supreme Court addressed challenges to the effectiveness of police investigations into events which took place during the Northern Ireland conflict. The European Court has long maintained that the right to life (Article 2 ECHR) and the prohibition upon torture and inhuman and degrading treatment (Article 3 ECHR) carry with them positive obligations on the state to conduct effective investigations. These “legacy” cases not only draw the Courts into debates over some of the most contentious aspects of the Northern Ireland conflict, in particular the involvement of state agents in killings and the infliction of serious harms upon individuals, but they also pose questions about how human rights law applied in the context of Northern Ireland as a jurisdiction before the enactment of the Human Rights Act 1998.
The decisions
For reasons of economy, this post will focus on the facts of the McGuigan and McKenna elements of this litigation, which concerned the ill-treatment of detainees who had been interned in the 1970s (while also exploring broader questions which concerned all elements in the litigation). The scope of this ill-treatment, involving the subjection of internees to the infamous “five techniques” (including hooding of detainees to disorient) as part of interrogations, has long been known. Indeed, the resultant case of Ireland v United Kingdom remains a key turning point in the development of the European Convention on Human Rights, demonstrating that the Strasbourg Court would be willing to uphold human rights claims against an important member state even as it sought to tackle political violence. In that decision, although the Court found that the five techniques breached Article 3 ECHR, it discussed them in terms of inhuman and degrading treatment and not torture. Releases of documents by the National Archives (highlighted in a 2014 RTÉ documentary), however, showed UK Cabinet Ministers discussing the extent of the interrogation practices when they were taking place, and led to calls for fresh police investigations into whether there has been a coverup.
One of the most keenly-awaited judgments from the Northern Ireland High Court, Gallagher’s application [2021] NIQB 85 is a roughly-300-paragraph deep-dive into some of the abiding legal controversies surrounding the Omagh bombing of 15 August 1998. The bombing, for which the Real Irish Republican Army (RIRA) later claimed responsibility, killed 29 men, women and children and 2 unborn children and injured many others. It continues to reverberate down the years as the deadliest single incident in the history of the Troubles in Northern Ireland.
Gallagher is a paradigm example of Convention rights at play. As such, it provides food for thought when considered against the scrutiny of both the Human Rights Act 1998 and Legacy litigation. This post sets out some of the main facts before analysing the main Convention-related arguments and the Court’s treatment of them.
The aftermath of the Omagh bombing. Copyright AP/Paul McErlane 1998
The facts
First, this case did not determine who was to blame for the bombing. The issue was a challenge to a 2013 decision, by then Northern Ireland Secretary, Theresa Villiers MP, not to order an inquiry into the Omagh bombing. This was important was because of the series of investigations that had preceded the 2013 decision – and failed to answer lingering questions.
Lawyers working on cases dealing with Northern Ireland’s troubled past know that this field of legal work develops slowly. Sometimes, however, developments occur at an unexpected and unwelcome speed. Such has been the case this week. From the collapse of a controversial trial to the reporting of a legislative “amnesty”, the legacy of the Troubles remains an indelible part of both judicial business and daily life.
The fatal shooting of Joe McCann (The Queen v Soldiers A & C)
Joe McCann had been a member of the Army Council of the Official IRA. In 1972, he was the Officer in Command, First Battalion of the Official IRA and in charge of the Markets area of Belfast. He was suspected to have been involved in the murders of two soldiers and the attempted murders of four police officers (among other serious incidents). In the afternoon of 15 April 1972, he was seen by a Royal Ulster Constabulary (RUC) police officer who alerted a nearby patrol of paratroopers which included soldiers A and C. The police officer tried and failed to arrest Joe McCann, who was running away from him and the paratroopers. The police officer shouted at him to halt but he kept running. There was then sudden gunfire from behind the police officer, where the paratroopers were standing. Joe McCann was struck by two or possibly three bullets and died quickly at the scene. No forensic analysis was undertaken to determine who had fired the fatal shot.
Re B’s application [2020] NIQB 76 was a challenge to a decision to prosecute a soldier for offences going back to 1972. Part of the small but politically divisive cohort of prosecutions arising out of the Troubles in Northern Ireland, Re B provides a classic example of how courts approach the issue of fairness in criminal prosecutions for historic offences.
“B” is a former soldier of the British Army who had been serving in Northern Ireland. On 31 July 1972, the Army launched “Operation Motorman” to clear so-called “no-go” areas in Belfast and Derry, which had become highly problematic and dangerous for security forces at the time.
In the early hours of 31 July 1972, B was part of a company of soldiers deployed in the Creggan Heights area of Derry. He was armed with a 7.62 x 51 mm calibre General Purpose Machine Gun. At around this time, three local people were also in the area: Thomas Hegarty, his brother Christopher Hegarty and their cousin Daniel Hegarty. At some time shortly after 4.15 am, there was a burst of machine gun fire. When it stopped, Daniel Hegarty lay dead on the street, having been shot twice in the head. He was 15 years old. Christopher Hegarty was also wounded in the shooting, but survived.
The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent) [2017] NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
R (o.t.a A and B) v. Department of Health [2017] UKSC 41, 14 June 2017 – judgment here; previous post here.
Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).
Was it unlawful for the Secretary of State for Health, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?
No, said the Supreme Court (Lord Wilson, who gave the lead judgment, and Lords Reed and Hughes, but with Lord Kerr and Lady Hale dissenting).
Background law and facts
The law on abortion in Northern Ireland is governed by the Northern Ireland Assembly. Abortion is only lawful there if there is a threat of long term psychiatric or physical injury to the mother. As this is difficult to prove, a steady stream of women come from Northern Ireland to secure abortions, mostly from private clinics that charge a fee for the service as they are unable to obtain a termination free of charge under the English NHS. Continue reading →
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) – read judgment
A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.
This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.
At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute. While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.
However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out. Continue reading →
Silence is the language of God, all else is poor translation.
(Jalāl ad-Dīn Muhammad Rūmī , 13th Century Persian Islamic scholar and poet)
These words were the last in the ruling by DJ McNally in the Belfast county court, acquitting Pastor McConnell of grossly offending Muslims in a sermon that had been delivered in church but also transmitted over the internet. The Pastor had declared from the pulpit the there were more and more Muslims “putting the Koran’s hatred of Christians and Jews alike into practice”, and the sermon had continued in a similar vein. Continue reading →
Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?
It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.
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In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court 
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