O'Riordan v Director of Public Prosecutions

A statutory prohibition on publishing identifying material concerning a child victim of a sexual offence may be compatible with Article 10 even though liability is strict. The restriction is proportionate where it protects vulnerable victims and includes a defence based on the publisher’s lack of awareness or suspicion of the prohibited matter.

The expression likely to lead members of the public to identify is sufficiently precise. Its meaning depends on context and does not require statistical probability; a real risk, danger or chance of identification is sufficient. A later statutory defence need not be read into earlier legislation where the legislation was already Convention-compatible.

The claimant, the editor of Marie Claire, appealed by way of case stated from a decision of a district judge at Bow Street Magistrates’ Court. The district judge rejected a submission that there was no case to answer, after which the claimant pleaded guilty.

The prosecution concerned publication of a child’s name and photograph in circumstances where an allegation of inciting a child to commit gross indecency had been made against an adult. The claimant argued that sections 1 and 5 of the Sexual Offences (Amendment) Act 1992 were incompatible with Article 10 of the Convention because the restriction was disproportionate and insufficiently precise. She also relied on a later statutory defence concerning lack of knowledge that an allegation had been made.

The appeal was dismissed. The district judge was entitled to reject the submission of no case to answer.

1. Proportionality. The publication prohibition interfered with freedom of expression and pursued the legitimate aim of protecting the rights of others, namely a child victim. The strict-liability character of the offence did not make the restriction disproportionate. The court attached significant weight to Brown v the United Kingdom, an inadmissibility decision concerning comparable victim-identification legislation, and held that there could be no different conclusion for child victims of sexual offences.
2. Prescription by law. The phrase “likely to lead members of the public to identify” was sufficiently precise. The word “likely” takes its meaning from context. The relevant standard was a real risk, danger or chance of identification, rather than statistical probability. The approach stated in Attorney General v Greater Manchester Newspapers Limited provided a useful definition.
3. Later defence. The later insertion of section 5(5A) of the Sexual Offences (Amendment) Act 1992 did not require the court to read that defence into the earlier, unamended legislation. There was no evidential basis for inferring why Parliament had enacted the amendment or delayed its commencement, and the unamended provisions were Convention-compatible.
4. Application. The prosecution evidence was capable of establishing strong grounds for suspecting that an allegation of sexual misconduct had been made. It was open to the claimant to make enquiries of the police. The facts therefore supported the conclusion that there was a case to answer.

The claimant was ordered to pay the respondent’s costs, to be taxed if not agreed.

• Bow Street Magistrates’ Court: The district judge rejected the submission of no case to answer. The claimant then pleaded guilty.
• High Court (Administrative Court): The appeal by way of case stated was dismissed. The district judge’s decision was upheld.