The High Court in Belfast recently considered the human rights implications of publishing the identity of a child suspected of, but not yet charged with, a criminal offence.
The Applicant when arrested by Police investigating the TalkTalk hack in 2015. He was 15 at the time, with a diagnosis of Asperger’s Syndrome. At the relevant time, he had not been charged with any criminal offence and was released on police bail.
Details of the Applicant’s identity were published in several newspapers and online. These included his name, age, photograph and where he lived.
The Applicant argued that this breached his right to privacy.
Under the Criminal Justice (Children) (Northern Ireland) Order 1998, there are reporting restrictions to protect the identity of any child defendant. The legislation did not, however, extend to a pre-charge scenario. Although the Youth and Criminal Evidence Act 1999 contained such a provision, it had not actually been brought into force.
In 2016, the High Court concluded that this did not breach the Applicant’s right to privacy under Article 8, ECHR. Further, the State could not be compelled to commence the relevant provisions of the 1999 Act.
On appeal, an additional challenge of unlawful discrimination contrary to Article 14, ECHR was advanced. The Court of Appeal referred the matter back to the High Court on this point.
In the meantime, the Applicant was charged, pleaded guilty and was sentenced in relation to the 2015 hack. Further, as the Applicant was now 18, the reporting restrictions no longer applied to his civil proceedings and his name was reported in the local press.
At the time of the Application, however, he had not been charged with any offence. Had he, the automatic protection of the 1998 Order would have applied.
Mr Justice Colton, in dismissing the Applicant’s claim, drew a distinction between the Applicant and a youth who had already been charged:
[The] vulnerability [of a child who has been charged with a criminal offence] to breaches of their… rights is manifestly greater to those in a pre-charge situation who enjoy common law protection.
This raises issues not dissimilar to those in Sir Cliff Richard’s civil action against the BBC in 2018. That said, given the Applicant’s subsequent conviction, these may now seem rather academic.