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Judge: Photos of Sex Offender May Not be Published

January 26, 2009

IrishTimes ( Belfast) : Photos of Sex Offender May Not be Published.

The High Court in Belfast: In his ruling, Mr Justice Stephens 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 and the narrower debate on whether it was in the public interest to publish recognizable photos of the individual in question.

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

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

An un-pixelated 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.

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.

Counsel for the Northern Ireland Office referred to several research publications, including the Harvard Law Review (posted on this blog) 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.

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

This is more evidence that while Europe is moving in the direction of more freedom and democratic rights, the U.S. is moving in the opposite direction.

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