Callaghan ruling could set dangerous precedent

On Friday a judge ruled that our sister newspaper the Sunday Life could not publish pictures of a vicious sex killer who has been released from prison. Our legal affairs expert Walter Greenwood says the injunction is a worrying development

Monday, 11 February 2008

There have been times when a free press, essential to a working democracy, has seemed increasingly under threat from Parliament, hellbent on more regulation of the media, and from over-sensitive judges.

It seemed the threat was being kept at bay when the freedom of the media was enshrined in the European Convention on Human Rights (ECHR) which became part of UK law under the Human Rights Act 1998.

ECHR preserves for every citizen the right to freedom of expression and the right to communicate information.

Even now however a judge occasionally imposes some restraint that seems to be at odds with ECHR and the Human Rights Act.

It is true that Article 10 of ECHR allows for an exception to these freedoms "for the protection of health or morals."

Until an application was granted in the High Court in Belfast last week however it was virtually unheard of for the courts to ban publication of matter concerning an adult defendant - let alone a convicted murderer.

As Lord Justice Latham put it in the Court of Appeal in London in 2003, the public has an interest in knowing the identity of a defendant and that is one of the important and usually inevitable consequences of public trial.

He added that as a general proposition, there is proper public interest in knowing the identity of those who have committed serious and detestable crimes.

Yet the High Court has granted an interim injunction stopping the publication of photographs of Kenneth Callaghan on his release soon from prison where he is serving time for sexually assaulting and murdering a 21-year-old woman, Carol Gouldie.

The judge said he was doing this because he feared a real and immediate threat to Callaghan's life if the picture appeared in the Sunday Life, the Belfast Telegraph's sister paper.

The injunction was granted in spite of lawyers for Callaghan and for the Prison Service accepting that he was not at risk from Miss Gouldie's family who say the matter is in the hands of God.

A more realistic attitude to the dangers of criminals being subjected to attack was that taken in 1997 by Sir Liam McCollum, then a Lord Justice of Appeal in Belfast.

He said the possibility of an attack on a defendant by ill-intentioned persons was merely speculative and could not be regarded as a consequence of publication which should influence the court.

Children who have committed horrendous crimes are in a different category. Many in the media would accept that in the interests of allowing these children to redeem themselves and live new law-abiding lives it may be necessary for them to keep secret their new identities and whereabouts.

This occurred when the two young killers of the toddler James Bulger in Liverpool were about to be released after their time in custody.

Dame Elizabeth Butler-Sloss, a senior judge in the High Court in London, in imposing a breach of confidence injunction said that it was necessary in an exceptional case.

Nevertheless the courts have long realised that there are important issues at stake when they contemplate interfering with the media's right to communicate and the public's right to be informed.

The Lord Chief Justice of England and Wales, Lord Phillips said in 2005 that a claimant seeking an interim injunction restricting publication had to clear a particularly high bar to have one granted in light of the Human Rights Act.

It is difficult to see how Friday's injunction, however well-intentioned, meets the high standard for testing these claims.

A free press is a pillar of democracy. The courts often have to perform a balancing exercise between freedom of expression and protection of some interest.

This temporary injunction seems to have tipped the scales against a free press. It represents not only an encroachment on the freedom of the press, but on the freedom of the public to know.

The injunction will set a dangerous precedent if it is made permanent.

It will open the door to others who wish to escape the full consequences of what they have done and it will make it more difficult for the public to be made aware of the danger that some convicted criminals may still represent.

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