Some questions the Tribune will need to address

**Note, I have no legal training so take a health warning as you read and feel free to forward any correctives**

Since the Tribune articles on the alleged sexual abuse by ‘X’ some people, myself included, have been pondering the legality of a small element of the reporting in particular the potential identification of a complainant in a case through the information published. Despite the recent press release from the Tribune we are unlikely to have heard their full defence while the possibility of legal action is being floated. However, while recognising that, based on what is in the public domain some questions on elements of their coverage have arisen.

Legal issues which could be raised centre on elements of the Sexual Offences (Amendment) Act 1992 as noted in this Judicial Studies Board document on reporting restrictions: (more below the fold)

Section 1 of the amended 1992 Act (Sexual Offences (Amendment) Act 1992) imposes a lifetime ban on reporting the identity of the alleged victim once an allegation that an offence has been committed is made and this continues after someone has been charged.

The offences to which this automatic restriction applies are set out in section 2 of the 1992 Act and include rape, indecent assault, and indecency with children as well as the vast majority of other sexual offences.

Since the restriction is mandatory no order of the court is required even in the case of a child victim.

Detail from the Act on Anonymity:

Anonymity of victims of certain offences.

— (1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.
(2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.
(3) This section—
(a) does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence, and
(b) in its application in relation to a person by virtue of subsection (2), has effect subject to any direction given under section 3.
(3A) The matters relating to a person in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a) the person’s name,
(b) the person’s address,
(c) the identity of any school or other educational establishment attended by the person,
(d) the identity of any place of work, and
(e) any still or moving picture of the person.
(4) Nothing in this section prohibits the inclusion in a publication of matter consisting only of a report of criminal proceedings other than proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which the accused is charged with the offence.

Offences that can be committed under the Act and waivers:

5 Offences

(1) If any matter is published or included in a relevant programme in contravention of section 1, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale— (note this seems to indicate a maximum fine of £5,000 on conviction)
(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b) in the case of publication in any other form, the person publishing the matter; and
(c) in the case of matter included in a relevant programme—
(i) any body corporate engaged in providing the service in which the programme is included; and
(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper.
(2) Where a person is charged with an offence under this section in respect of the publication of any matter or the inclusion of any matter in a relevant programme, it shall be a defence, subject to subsection (3), to prove that the publication or programme in which the matter appeared was one in respect of which the person against whom the offence mentioned in section 1 is alleged to have been committed had given written consent to the appearance of matter of that description.
(3) Written consent is not a defence if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it.

(4) Proceedings for an offence under this section shall not be instituted except by or with the consent of the Attorney General.
(5) Where a person is charged with an offence under this section it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or (as the case may be) included, the matter in question.
(6) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) a director, manager, secretary or other similar officer of the body corporate, or
(b) a person purporting to act in any such capacity,
he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly.
(7) In relation to a body corporate whose affairs are managed by its members “director”, in subsection (6), means a member of the body corporate.

Applicability to the north of Ireland:

8 Short title, commencement and extent, etc

(7) This Act shall not extend to Northern Ireland, except so far as it relates to courts-martial and the Courts-Martial Appeal Court and to such a publication in, or such an inclusion of matter in a relevant programme for reception in, Northern Ireland as is mentioned in section 1(1) or (2) as adapted by section 7(2)(b).

Other areas to note from Judicial Studies Board:

The victim or alleged victim may, in writing, agree to the restriction as to the reporting of his/her identity being lifted

6.1. Jigsaw identification

Particular problems may arise where an order restricts publication of the identity of a victim or witness, and different reports, each complying with the requirement not to identify the victim or witness provide information which when put together makes the restricted identification clear. For example, if one report refers to an unnamed defendant having been convicted of rape of his daughter and another report names the defendant but does not identify the relationship between the defendant and the witness. However, newspapers, magazines, broadcasters and their regulators have aligned their respective codes so that the media adopt a common approach which avoids such problems when reporting sexual offences (see Code of Practice upheld by the Press Complaints Commission, BBC Producers Guidelines, Independent Television Commission Programme Code, Radio Authority Programme Code).

From previous press releases the complainant in the case approached the Tribune and gave substantial detail on allegations of abuse, it also seems clear at the 11th hour they sought to withdraw consent for publication.

As has been noted law in this area seems pretty straight forward – from the moment of an allegation of sexual abuse until the complainant dies it is illegal to give any information that may lead to their identification. Indeed it is permitted to give full details of an alleged offence and even the accused’s name as long as it doesn’t compromise a victim’s identity.

The only permitted legal exceptions are when in receipt of a waiver from the complainant or when a judge directs that identification is permitted. The Tribune hasn’t publicly stated it has a waiver (if it did any legal questions would begin to evaporate) but we don’t know what their legal advice is, or the entirety of their interaction with others on this.

So what is the defence from the Tribune for not respecting a claimed withdrawal of consent in this case? I can see the public interest, I can see the potential for the person involved to have been pressurised into withdrawing their interview. I can’t currently see the legal defence for the possibly identifying material that ended up in print, not in their articles or press release anyhow.

Slugger understands the Tribune intends to cover these issues in Sunday’s paper and they have indicated to us they have the material for a robust defence (we have not had sight of any of this and cannot comment on its veracicty and/or weight) so for the present there are valid questions that remain unaddressed.

Additionally, hopefully the above gives some indication of the legal concerns that Mick has to take into account for blog entries and comments on this topic. Until we see the Tribune’s clarification Slugger has to ensure the law as it stands is complied with here.

Given the legal issues in relation to this case please be cautious in your comments.

  • alf

    so unless the ST can produce the waiver its settled?

    also you stated

    “I can see the potential for the person involved to have been pressurised into withdrawing their interview”.

    this is speculation, and even if it was the case would it be relevant ?

  • Jimmy_Sands

    I’d be curious to know what the position is where there has been a previous publication elsewhere. Whatever the Tribune’s defence I can’t see what argument the BelTel could raise.

  • Mark McGregor

    alf,

    Not speculation from me. The Tribune claimed withdrawl after “intense pressure”.

    Jimmy,

    If you care to check, the article you refer to (which we would prefer isn’t linked here at present) doesn’t refer to sexual abuse and doesn’t come under this legislation.

  • Alias

    If it wasn’t for Blogland, none of us would be any the wiser about who X is from the Tribune report, who her husband was, or who the victim is. In fact, I didn’t know until someone posted a link to a page revealing the identity of the Shinner’s very own Rosemary West on your Twitter page.

    How can the state successfully manage to conceal identity in the Internet age? These privacy laws were designed with print and broadcast media, and they are no longer fit for purpose.

  • Jimmy_Sands

    Mark,

    I understand the concern. You may want to check as I think it was linked here on another thread. As I read the statute, there is no requirement for the article to mention a sex offence, but merely to make the identification of the victim likely. This would seem to be an example of the “jigsaw” scenario mentioned above. What seems to make their offence worse is that there is no possible question of the victim’s consent.

  • alf

    alias, you are havin a laugh are you not, what a waste of broadband you are

  • Alias

    No, alf, I find find it funny that the Shinners think that their own version of Rosemary West is a fit and proper person to hold public office or merits their protection.

  • nick

    I think it unwise to have a thread on this topic due to the hit and miss nature of the information provided. It is merely an invitation for the more reckless contributors to launch into more libellous innuendos that would compromise Mick’s site.

  • Alias

    Delete 2 find and add 1 don’t. 😉

    As for the Tribune, that paper did not reveal the identity of the Shinner concerned. Blogland did that.

  • Scaramoosh

    Consent.

  • Jimmy_Sands

    Alias is right of course. The very reason we are all dancing around these details is that we have all been able to find them with very little difficulty. Surely no-one seriously imagines that the anonymity of any of the dramatis personae is likely to be maintained.

  • Mick Fealty

    Alf,

    Keep that up and you are out on yer ear.

  • alf

    Mick I fail to see why you have threatened me ? pls elaborate ?

  • Mick Fealty

    Playing the man. Just keep it on topic, and you’ll be fine. Now, play on…

  • Sean Og

    Serious questions to be answered all around it seems.

  • alf

    haha ok, but seriously did you read comment 4 ? hardly constructive debate is it

  • Mark McGregor

    Sorry about the interuption there. We needed to discuss something and the post was down while that took place.

  • The Tribune identified the victim.

    [edited by moderator – please note the request for caution. We are still respecting the jigsaw legislation while possible legal action is being suggested]

    That’s called jigsaw identification (see Mark’s outline above)
    The Tribune is fucked if X takes legal action. They can produce whatever waivers they like but the fact remains X contacted her solicitors prior to publication and demanded details be withheld.

  • This case has very similar circumstances to the one involving X in terms of jigsaw identification.

    30 June 2006

    England football star Ashley Cole’s “gay orgy” libel victory over News International this week set a new precedent for jigsaw identification involving the internet.

    The settlement was agreed on the eve of Cole taking part in England’s 1-0 win over Ecuador, which took them into Saturday’s World Cup quarter-final.

    Cole has won apologies and damages, believed to total more than £100,000, from The Sun and the News of the World over stories they carried about un-named Premiership footballers involved in “perverted” orgies involving a mobile phone.

    Although the stories did not name Cole, his lawyers were prepared to argue in court that they could provide readers who decided they referred to the England star after conducting their own research on the internet.

    Cole lawyer Graham Shear, from TSS Law, said: “I think the warning to journalists from this is that the internet is a powerful tool which means that you can’t be suggestive unless absolutely certain of your facts.

    “In this case they weren’t sure of their facts and their facts were wrong — what started out to be something suggestive turned into an unexploded bomb, and it’s blown up in their faces.”

    The News of the World reported on 12 February that there had been a “homosexual orgy” involving two Premiership footballers and a “pal well known in the music industry”.

    On 19 February, the NoW published details of more “perverted” orgies along with a heavily obscured photo of “the DJ” and “player B”.

    That photo proved to be the newspaper’s downfall in this case, because, despite being pixillated and changed, a number of websites, including Pinknews.co.uk, found the original and named the men concerned as Cole and the DJ Masterstepz.

    Masterstepz, real name Ian Thompson, also this week won an apology and “substantial damages” from News Group Newspapers.

    He was represented by David Price Solicitors.

    The Sun was drawn into the libel action over a 12 February story headed “Who bum it?”, which reported that two Premiership footballers and a music industry figure were involved in a “gay romp” involving a mobile phone as a “sex toy”.

    A further Sun story on 16 February pictured Cole with his fiancée Cheryl Tweedy wearing her new engagement ring under the innuendo-laden headline “Ashley’s got a good taste in rings”.

    Shear said that he had done his best to protect Cole from distraction during the World Cup campaign and that most of the settlement was agreed several weeks ago.

    Shear said that a website his law firm set up — asking people to come forward who used the internet to make the connection between Cole and The Sun/NoW articles — had played a crucial role in gaining this week’s settlement.

    Legal expert Katrin Evans from 1 Brick Court said the “jigsaw identification” was a novel aspect of the case and would have been the first such libel action to be heard in court. She warned journalists: “If you are not named in a newspaper you can nonetheless sue over a defamatory article if you can call people in court who identified it to be you.”

    Caroline Kean from Wiggin said: “Neither of the apologies in The Sun and News of the World admit that they did identify either of these people — all they admitted is that some readers understood it to be them.

    “I suspect this is a hard-headed purely pragmatic apology by newspapers knowing legal expenses are high.”

    Pinknews.co.uk was warned back in March by News Group that it could seek to recover costs under the Civil Liability Contribution Act because of the role the website played in bringing about the Cole action.

    News editor Marc Shoffman said: “We are yet to hear whether News Group will be issuing third-party proceedings against us, but it seems unlikely as they have voluntarily admitted they were liable in this issue.”

  • Mark McGregor

    DS,

    Why are you raising the problems with ‘jigsaw’ on the internet and then putting this site at risk by engaging in it just moments ago?

  • jtwo

    Presumably if somone alias cared about was sexually assaulted he wouldn’t have any bother with the details of their trauma being picked over by a bunch of webmongs in brave defiance of outmoded state censorship?

  • Mark McGregor

    jtwo,

    My work on this blog was in part generated by your questions on the issue.

    Why not deal with the detail now it has been given a space for discussion over having a pop at another comment?

  • Just on legal issues. There was talk of PSF launching legal action. As I understood it, you could not launch legal action like this for libel, it had to be invidiuals. Is this correct, or can the party sue? Does anyone know?

  • Jimmy_Sands

    I believe it has to be individuals unless it’s a trade libel.

  • jtwo

    Fair enough, but that struck me as a spectacularly idiotic post and it illustrates the naivety of some web enthusiasts who seem to keep believing that the state and the law would simply give up on enforcing the law in this new space. As another poster has already illustrated the law has adapted and is being enforced.

    You’ve done a decent job Mark, I’m not across detailed case law and precedents in this area but it would good if someone would post some links.

  • Banjaxed

    Garibaldi
    ‘….. There was talk of PSF launching legal action. As I understood it, you could not launch legal action like this for libel, it had to be invidiuals’.

    One guess:
    Whom do you think the ST has in its sights?
    Party, person or both?

    Could be an expensive debating point….

  • West Sider

    This blog is in dire legal straits.

    Liam Adams, X, Ms Cahill – any cut price solicitor would have easy money in pranging any case which came before the courts.

    Also, I’m not sure what the victims expected from Sinn Fein and the IRA – as per the presentation by the Sunday Tribune and this blog.

    As far as I can determine, they urged the latter two to go to the social services and the police.

    Is the big scandal that SF/IRA (to give them their correct nomenclature) didn’t take them out and shoot them, or, at the opposite end of the scale, exile them.

    I wonder what the Sunday Tribune/Slugger would have made of that.

    And as for Grizzly managing a family difficulty at a time when he was ending the war and under intense surveillance from the usual suspects, well, I’ll give him the benefit of the doubt, even though I think he’s a twunt.

    I think he’ll survive this, but certain newspapers and blogs may not have the support or cash to survive this reckless and hysterical feeding frenzy.

    Signed,

    Confused, West Belfast.

  • Mark McGregor

    WS,

    Mick and myself are open to any requests to remove or alter actionable material. Your entry while suggesting Slugger is open to legal action doesn’t actually reference anything specific.

    Feel free to drop Mick an email with any concerns. He does respond and promptly.

    If there is anything actionable in this entry and it is drawn to my attention I will remove it immediately and offer a full retraction. As yet, no concerns have been raised.

  • Jimmy_Sands

    “As far as I can determine, they urged the latter two to go to the social services and the police.”

    Well if they say so it must be true.

    SF usually threaten writs. The last one to go through with it I believe was Slab. I can’t see them going down that road again somehow.

  • West Sider

    I’m certain neither of you have seen the inside of a courtroom, and definitely have never been involved in a sexual violence/abuse case at a legal level.

    Regardless of the ‘advice’ you’ve received, I firmly believe you have damaged any legal case being brought by those victims you’ve blogged on and invited others to speculate on.

  • Mark McGregor

    Nick,

    Just moticed your comment:

    I think it unwise to have a thread on this topic due to the hit and miss nature of the information provided. It is merely an invitation for the more reckless contributors to launch into more libellous innuendos that would compromise Mick’s site.

    I assure you these concerns are very much in my and Mick’s minds. However, the question can be raised and if comments step over the line they will be shown the door and/or commenting will be closed.

    A better idea than just ignoring topics I think.

  • Mark McGregor

    WS,

    Mick made it clear earlier that the only legal issues that have been raised so far in relation to our coverage have been generated through the comments not our blogs.

    Any issues raised have been dealt with robustly and afaik to the satisfaction of those raising them.

  • Jimmy_Sands

    “I’m certain neither of you have seen the inside of a courtroom,”

    On the other hand many of those wanting this story to go away…

  • West Sider

    WS,

    Mick made it clear earlier that the only legal issues that have been raised so far in relation to our coverage have been generated through the comments not our blogs.

    Any issues raised have been dealt with robustly and afaik to the satisfaction of those raising them.

    That is so incredibly naive, and beggars belief. Leaving aside the leading and loaded blogs, and if I may be frank, without having the time time to quote the relevant pieces, your grasp of legal due process is laughable.

    It’s time you considered not how you play it, but how you’ve been played.

    Once legal proceedings begin in any of the cases this site blogged on repeatedly, there will be a period of silence, but as I’ve stated, any junior lawyer worth a career will cite this blog (admittedly as a junior partner) as exhibit Z in any trial.

    Although not sub judice now – what flows from it in the unfettered internet garden we know and love, will ensure a non-trial.

    Well done.

  • Mark McGregor

    WS,

    It’s a pity you don’t have the time or inclination to go into the detail. Maybe when you or anybody else explain the issue with Slugger coverage it will be addressed. Until then it just sounds like ‘shut up’.

  • Jimmy_Sands

    “your grasp of legal due process is laughable”

    Better than yours from where I’m looking, but I’ll suppose we’ll see when this “non-trial” occurs. Whatever that is when it’s at home.

  • West Sider

    It’s a pity you don’t have the time or inclination to go into the detail. Maybe when you or anybody else explain the issue with Slugger coverage it will be addressed. Until then it just sounds like ‘shut up’.M

    Detail: Up to twenty posts from Slugger focussing on how Gerry Adams and Sinn Fein have lied and covered up violent sexual abuse committed by their members and then when nothing was ‘done about it’ – whatever that means – this leads to more blogs and posts, inviting more comment and speculation on how it’s all to do with MI5, Catholic guilt, west Belfast family craziness, policing and justice, global warming et al.

    I love it when the ignorant confirm their fears by characterising any challenge to their dogma as ‘shut up’- it’s the best laugh going. Thankss for that.

    Don’t shut up, Mark. Post, post and post again. Keep posting and keep talking and keep posting. Like the next Joe and Josephine, I love to watch a metaphorical train wreck.

    Go on, give us more! More, more, more….

  • West Sider

    This site is biased. Jimmy Sands made a comment which was smug, and I responded in kind.

    His comment was allowed to stay and mine was removed.

    Why was this?

  • alf

    haha you forgot the physcosexual undertones of the greater nationalist family

  • jtwo

    Of course any junior lawyer will cite media coverage as grounds for dismissal in a voir dire but it’s equally likely that a judge will reject the argument.

    Such arguments are made before virtually any trial which had a lot of pre-charge publicity but judges almost always reject them because:

    1) The concept of fade-factor ie. jury members will have forgotten the detail of months old media coverage.

    2)They assume jury members are not idiots who will believe everything they read in the papers as opposed to following the arguments in court.

  • alf

    http://news.bbc.co.uk/1/hi/technology/7252474.stm

    piece on media threating court cases

  • “DS,

    Why are you raising the problems with ‘jigsaw’ on the internet and then putting this site at risk by engaging in it just moments ago?”

    Mark, I quoted the sentences from the Tribune to show how it identified the victim.
    That aside, this whole episode and that involving Liam Admas shows how much of a risk Slugger has become.
    This isn’t a small blog viewed by a handful of people.
    This is a big blog with thosuands of viewers that carries adverts and holds award ceremonies.
    Ffs, it has transformed Mick into a political commentator.
    In that respect Slugger needs to be aware of its responsiblities and realise that given its size it is answerable to libel laws.
    I’m still shocked by the amount of defamation that passes for comment on this site.
    If it continues, mark my words, someone will sue.

  • Elf-een

    Leaving aside the legalities of if the ST was legally ok or not in the x case, and it seems using jigsaw identification it was not, it was morally wrong.
    The victim asked the paper not to print certain details the paper gave the victims solicitors assurances it would not and then went ahead anyway.
    Having read the account of her awful childhood this to me is unbeliveable.
    Why anyone would want to add to this poor woman’s distress is a mystery to me.
    I can only imagine that decency isnt big on the agenda when it comes to the media

  • Banjaxed

    Surely by now it is obvious to most that the victim’s well-being was never on the cards. The ST’s agenda was *ALWAYS* Adams or SF. Eamonn McCann (no friend of SF) has an article in the BelTel which spells it out. http://tiny.cc/NHvvm

    BTW, my post is by no means is an apologia for GA or SF or even an attempt at one. Their handling of the matter leaves a lot to be desired and, as I said before on another thread, if the law has been broken, let due process follow. I’m more interested in the objectivity of the press and, IMHO, the ST’s record, vis-a-vis it’s reporting on SF, quite frankly stinks.

  • Jimmy_Sands

    McCann says nothing about the ST. I think his analysis is spot on. The case Adams has to answer concerns not the minutiae of his niece’s case but the instruction given by him in 1995 that abuse cases were not to be reported to the police.

  • heamaisbharney

    mary lou had her chamce with suzanne breen this morning on the kenny show; i did not hear it but am told that mcdonald was very poor and breen wiped the floor with her.