Photos of sex offender may not be published

 

High Court of Justice in Northern Ireland, Queen’s Bench Division Callaghan -v- Independent News and Media Ltd

Northern Ireland Office -v- Independent News and Media Ltd

Judgment was given by Mr Justice Stephens on January 7th, 2009

Judgment

An unpixelated photograph of sex murderer Kenneth Callaghan, from which he could be identified, cannot be published. Mr Callaghan has served 21 years of a life sentence and is due for supervised release, and Mr Justice Stephens ruled that the publication of such a photograph, by disrupting his supervision and support regime, would increase the risk to the public by increasing his risk of re-offending.

He granted a separate order that no photograph of any prisoner in the Prisoner Assessment Unit of the Northern Ireland Prison Service could be published without 48 hours’ notice.

Background

Kenneth Callaghan was sentenced to life imprisonment in June 1988 for the murder of Carol Jane Gouldie, aged 21, in October 1987. He was 18, and had been in a lengthy relationship with another young woman who had just ended it. He was slightly acquainted with Ms Gouldie, and he broke into her empty house, hid there, armed with a hammer and when she returned, he hit her several times on the head and then raped her either as she lay dying or was dead, having placed a cushion over her head. He did this to hide the fact that she was not his ex-girlfriend.

In the course of the police investigation of the murder, blood was found on his shoes and he made admissions. “This court and the public are acutely conscious of the intense suffering of the family of Carol Jane Gouldie,” Mr Justice Stephens said.

Callaghan was arrested on October 4th, 1987 and sentenced to life imprisonment in June 1988. In January 2005, the Lord Chief Justice, Sir Brian Kerr, set 21 years as the minimum sentence he should serve, which expired in October 2008.

The question of whether or not he remains in custody or is released on licence (under supervision) is now a matter for the Parole Commissioners, after a rigorous examination of the evidence as to the risk he will pose to the public, and whether the safety of the public requires that he continue to be confined, Mr Justice Stephens said.

Such prisoners are transferred to the Prisoner Assessment Unit, which permits day release and carries out assessments to assist the Parole Commissioners.

While on day release in February 2008, photographs were taken of Callaghan in a cafe and a shopping centre by a photographer for the newspaper group, which proposed to publish them.

He successfully sought an interim injunction to prevent this, pending this full hearing.

Already Sunday Life newspaper had published a number of articles about Callaghan, starting in February 2006.

These were entitled, “Jailed sicko who abused dying woman to compete in run”, “Sex killer let out to train for marathon”, and “Killer on the run”, and contained statements attributed to an unnamed prison officer that he was not trusted to be alone with a female member of staff, and that he should not be allowed within 20 feet of a woman.

“I hold that the tone and content of these articles were calculated to and did engender considerable public hostility and animosity towards the first plaintiff,” Mr Justice Stephens said, adding that they did not provide any balance by outlining the supervision regime he would be under by the authorities in the community.

Counsel for the newspaper group argued that it wished to publish the photographs so that members of the public could identify the former prisoner, and were therefore enabled to take precautions in respect of the risk that he posed.

It also argued that it was entitled to publish the photographs under the right, enshrined in the European Convention on Human Rights, to freedom of expression.

However, it agreed that it would be wrong to publish the detailed location of his whereabouts. Mr Justice Stephens found this to be an inherent contradiction in the defendant’s case, as the publication of the photographs would reveal Callaghan’s location to those living nearby who would identify him from them.

Decision

Mr Justice Stephens considered the Human Rights Act 1998, incorporating the European Convention on Human Rights into UK law; the expectation of privacy as outlined in Mosley -v- Newsgroup Newspapers; the balancing exercise required between competing convention rights; the specific position of photographs in the media as discussed in Douglas Ors -v- Hello Ltd Ors and Von Hannover -v- Germany; Articles 8 (right to respect for private and family life) and 2 (right to life) in the convention and the right to freedom of expression.

He distinguished between the “wider debate” on whether or not it was right to publish detailed information about sex offenders when they are to be released into the community, as occurs in the United States under “Megan’s Law” and the “narrower debate” on the specific question of whether it was in the public interest to publish recognisable photographs of this individual.

He said that the newspaper group did not seek, by calling witnesses or referring to publications, to establish that the outcome of the wider debate should be in favour of publication.

Counsel for the Northern Ireland Office referred to several research publications, including the Harvard Law Review and a report of the NSPCC entitled Megan’s Law: Does it protect children?, and called Prof Bates Gaston, chief psychologist of the Northern Ireland Prison Service, to give evidence.

Her evidence, supported by the research publications, was that successful integration of offenders into the community and the consequent reduction of risk of harm to the public, depended heavily on stable accommodation and employment for the offender.

“She stated . . . that public information such as contained in Megan’s Law does not reduce the risk of harm to the public, but rather increases the risk of re-offending and therefore of harm to the public. In particular, identification to a local community disrupts the two key elements of accommodation and employment,” Mr Justice Stephens said.

Referring to the risk to the public posed by Callaghan, Mr Justice Stephens described the assessment process he had undergone since December 2005.

At that point, the risk was assessed as high, although it was acknowledged he had made significant progress.

Further work with him was done, and in September 2007 the risk of his re-offending was assessed as medium, with a score of 21, medium risk being measured as between 21 and 28.

Numerous other assessments took place, along with a number of case conferences, and in August his probation officer recommended moving him to a hostel.

Mr Justice Stephens stated that the newspaper group did not call any evidence to support its published statements that the plaintiff was a “psycho” or “shouldn’t be within 20 feet of a woman”.

“On the evidence before me, the risk posed by the first plaintiff has been misrepresented by the defendant to the public,” he said. “For the purposes of this action, I find that there is a low to medium risk of re-offending.”

He added that he did not decide whether he should be released on licence, this was a matter for the Parole Commissioners.

In conclusion, he stated that the first plaintiff did not have an expectation of privacy as far as the police, the Prison Service and the Probation Service were concerned, but did have a “residuum of privacy” and he had not consented to it being intruded upon.

Referring to the issue of freedom of expression, he said: “The defendant is to be commended in relation to its stance against criminals and its desire to protect the public.” However, the proposed use of unpixelated photographs, in conjunction with articles which lack balance, “is out of proportion to the risks presently posed by the first plaintiff”.

He therefore ruled that a restriction on publication of unpixelated photographs was a proportionate response and necessary in a democratic society.

He also found that the publication of photographs of other prisoners in the Prisoner Assessment Unit would be likely to be an interference with the statutory responsibility of the Northern Ireland Office with regard to such prisoners, and made orders prohibiting the publication of such photographs without 48 hours’ notice to the Northern Ireland Prison Service.

The full judgment is on www.courtsni.gov.uk


Barry Macdonald QC,SC and Ms Leona Askin, instructed by John J McNally and Co Solicitors, for Callaghan; Stephen Shaw QC and David McMillen, instructed by the Crown Solicitor’s Office, for the NIO; Gerald Simpson QC and Hugh MacMahon, instructed by McKinty and Wright Solicitors, for Independent News and Media Ltd