Am I committing a crime when I say the police investigated allegations that the entertainer Jimmy Savile was a notorious paedophile?
That seems to be the effect of section 12 of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022, which came into force on 28 September 2023.
This is how section 12 begins:
What this means is that if someone complains to the police that an individual has committed a sexual offence — or if there has been no complaint but the police decide to launch an investigation — the suspect’s name can’t be published unless and until that suspect has been summonsed or charged.
This is Northern Ireland legislation, passed by the Stormont legislative assembly before Northern Ireland’s devolved government collapsed in February last year. The term “sexual offence” is confined to offences against the law of Northern Ireland. So the legislation applies to allegations or investigations of offences that may have been committed there.
Does that mean we can name Savile? No, because a report from HM Inspectorate of Constabulary in 2013 says that an allegation against him was made to the then Royal Ulster Constabulary during his lifetime. The police did not follow it up.
Savile died in 2011 without being charged. Does anonymity for suspects lapse on death? Far from it: under subsection (4), the restriction on identification continues, unless amended, until 25 years after the suspect’s death.
Surely the legislation can’t stop us publishing something that was already in the public domain when the law was passed? That makes no difference, according to subsection (6):
For the avoidance of doubt, for the purposes of subsection (1) it does not matter whether the allegation is made, or the step is taken, before or after this section comes into operation.
It’s possible for the 25-year period to be increased or reduced by a magistrates’ court at the request of family members or publishers. We would find out, sooner or later, if restrictions had been lifted. But how would we know if they had been extended? How, indeed, would we know that a person had been investigated by the police, perhaps many years earlier, if that person was never charged?
That’s important because section 16 makes it an offence to publish any information prohibited by section 12(2). The maximum penalty is six months’ imprisonment.
Of course, Stormont legislation can restrict publication only in Northern Ireland. But the pieces I write are emailed to readers there. My online archive can be accessed from anywhere.
If you are charged under section 16, you have a defence if you can prove you were “not aware, and neither suspected nor had reason to suspect”, that an allegation had been made to the police or that the police were investigating.
So it’s for you to prove your innocence. But there are a couple of safeguards. If “evidence is adduced that is sufficient to raise an issue with respect to that defence, the court must assume that the defence is satisfied unless the contrary is proved beyond reasonable doubt”. And prosecutions require the consent of the Northern Ireland director of public prosecutions.
Concerns about anonymity for suspects in Northern Ireland were raised by media bodies on the day the law came into force. Dawn Alford, executive director of the Society of Editors said:
Granting anonymity to those suspected of sexual offences for 25 years after their death is absurd and had this law been in place in 2012, it would have prevented the naming of Jimmy Savile in Northern Ireland in relation to sexual abuse allegations made against him.
As far as I can see, it still prevents us reporting this now. Clearly, the Northern Ireland director of public prosecutions would never authorise charges. But the law should be clearly accessible: we should not have to rely on a prosecutor’s discretion, still less on trying to find out whether a magistrates’ court has modified a ban.
Although Gillen supported posthumous anonymity for complainants, he did not recommend it for suspects. And yet legislators were told that he had. Despite a lengthy investigation, Sam McBride in the Belfast Telegraph was unable to establish how this misunderstanding arose.
It’s thought some media organisations that publish in Northern Ireland are now planning legal action over posthumous anonymity for suspects. That seems to have been confirmed by the Northern Ireland Department for Justice. Asked about the legislation yesterday, the department said:
A notice of intended legal proceedings has been received with regard to this matter. Accordingly, at this time it would not be appropriate for the department to comment on the issue.
That was issued in response to a series of questions from BBC Radio Ulster, which has interviewed one of Savile’s victims. I discussed some of the issues with Chris Buckler on Good Morning Ulster shortly after 7.30am this morning. And you can read Buckler’s report on the BBC news website.
Update 29 December: Sean O’Neill confirms in today’s Times that a legal challenge is being planned.
Might this or similar be relevant?
https://en.wikipedia.org/wiki/M%C3%A1ir%C3%ADa_Cahill#:~:text=to%20April%202019.-,Rape%20allegations,16%E2%80%9317%20during%20this%20period.
Dangerous Dogs' Breakfast.