Case Law, Northern Ireland: McAuley v Sunday Newspapers Ltd, Application for media injunction under Articles 2 and 3 dismissed – Hugh Tomlinson QC

9 09 2015

High-Court-BelfastOn 26 August 2015, Stephens J sitting in the Queen’s Bench Division in Northern Ireland, handed down judgment in the case of McAuley v Sunday Newspapers Ltd ([2015] NIQB 74).  The Judge dismissed an application by the plaintiff for an injunction to prevent two newspapers from “harassing, pestering, annoying or molesting” him by publication of information.  He also rejected the plaintiff’s application to continue reporting restriction and anonymization orders.

Background

The plaintiff was arrested on 27 October 2012 on suspicion of being involved in the murder of Daniel McKay.  On 29 October 2012 a warrant of further detention was granted and the plaintiff applied for judicial review of this decision. On 30 October he was released without charge.  He has not been further interviewed.

On 13 March 2014, the judicial review application was dismissed.  A public judgment was given, naming the plaintiff and referring to the suspicion that it was carried out by members of the IRA and to intelligence concerning the plaintiff’s suspected links to dissident republican groups ([2014] NIQB 31).

On 6 April 2014, the Second Defendant published an article in “Sunday Life” stating that the plaintiff had been named in the Court’s judgment.

On 28 May 2014, the police having received intelligence which resulting them in informing the plaintiff that:

Criminal elements plan to carry out an attack on Robert McAuley of … in the near future. Police believe this refers to you and would recommend you review your personal security.”

It was not clear what the nature of the threat was or whether it had been cause or contributed to by the Sunday Life article.  A further threat message was sent to the plaintiff by the police on 4 June 2014.

On 5 July 2014, the First Defendant published an article in Sunday World under the headline “Robbing Hood: Anti-drugs gang boss raking in a fortune from dope peddlers.” This article was accompanied by a photograph of an individual wearing a balaclava and a forensic type boiler suit brandishing a handgun beside action against drugs graffiti daubed on a wall. Beside that photograph is another showing the plaintiff’s face with a caption “Masked: Robert McAuley posing with a gun in front of AAD graffiti warning”.

The main thrust of the article was that the plaintiff was

“head of Action Against Drugs and that this organisation was a criminal gang which does not prevent the drug trade but rather “rakes in a small fortune ‘taxing known dealers’“. [17]

On 27 July 2014 the first defendant published a further article on page 26 of the Sunday World under the heading “Vigilante has price on his head“. The article states that “Bogus anti-drug vigilante Robert McAuley is on a dissident republican death list“.  The article said that plaintiff was a “dead man walking” and he had ruffled feathers [18].

On 28 July 2014, the police served the plaintiff with a further “threat message”.  There was no police evidence as to the cause of the threat although it came the day after the second article.  The first defendant said that the threat was generated by the plaintiff’s activities as described in the article.

Letters of claim were send to the First and Second Defendants on 1 August 2014 seeking undertakings that no further articles would be published.  Proceedings were not issued until 27 February 2015.

On 7 December 2014 the First Defendant published a third article in “Sunday World” under the headline “Exclusive Bombs and Threats as Rivals Fight for Deadly Business” and under the heading “Brothers in Harm“. The main theme of the article is that a band of INLA brothers are at the centre of a power struggle with cash hungry Action Against Drugs.  On 14 December 2014 a further article was published claiming that “Action against Drugs” rented out deadly weapons.

On 30 January 2015, the other person who had been arrested with the plaintiff for the murder of Daniel McKay was shot in the head.  The Sunday World published an article on 1 February 2015 suggesting that the INLA was responsible and the victim was a close associate of the plaintiff.

The plaintiff claimed that on 3 February 2015 a fourth threat to his life was communicated to him by the police.

Judgment

The judge considered of the case law on Articles 2 and 3 of the European Convention on Human Rights and the positive operation duty to protect life.  He held that

“if there is a real and immediate risk to the life of the plaintiff which was caused by or materially (that is greater than marginally) contributed to by the publications then I consider that the proportionate response is relatively straightforward in that there should be no further publications, the identity of the plaintiff should be anonymised and a reporting restriction should be imposed” [31].

It was accepted that there was a risk to the plaintiff’s life and safety.  The issue was whether this was caused or contributed to by the publications.

The Judge notes that section 12(3) of the Human Rights Act 1998 applied but that there was no single, rigid standard governing all applications for interim restraint orders. The court should not make an interim restraint order unless satisfied that the applicant’s prospects of success at trial were sufficiently favourable to justify such an order being made in the particular circumstances of the case (see AB v Sunday Newspapers [2014] NICA 58 at paragraph [7]). He held that the less cogent the evidence needed to satisfy the standard, (see Callaghan v Independent News & Media Limited [2008] NIQB 15 at [17] which is an aspect of the precautionary principle see Jordan’s Applications [2014] NIQB 11 at [118])([35]).

The judge held that the plaintiff was not likely to establish that the publication of the articles in Sunday World or the publication of further articles would cause any material contribution to the risk to his life or safety for eight reasons ([36]):

  • There was no direct evidence that the risk was caused or contributed to by the publications.
  • There were two threat messages from the police before any Sunday World article
  • There was no association in time between the first article in Sunday Life and the first and second threat messages.
  • The third threat message was associated with an article but this had to be seen in the context of the earlier messages
  • There was no threat message in the hours or days after the publication of the December 2014 article.
  • The fourth threat message was associated with the attack on the individual linked to the plaintiff.
  • There was evidence that the plaintiff was involved in criminal activity which would explain the risk to his life.
  • The plaintiff denied involvement in criminal activity but the judge did not regard his evidence as reliable.

In any event, the judge considered that the additional risk is not sufficiently significant to justify an injunction [37].

In relation to the Article 8 claim, the judge accepted that the plaintiff a reasonable expectation of privacy in relation to information that he had committed and intended to commit criminal offences.  There was, nevertheless, a public interest in the publication of the material and the balance came down firmly in favour of Article 10 [38].

In relation to harassment, the judge noted that press criticism, even if robust, did not constitute unreasonable conduct and did not fall within the natural meaning of harassment:

Before press publications are capable of constituting harassment they must be attended by some exceptional circumstances which justify sanctions and the restriction on the freedom of expression that those sanctions involve. Such circumstances will be rare [41].

There were no such circumstances in this case.

As a result the judge dismissed the injunction application.  The Judgment was originally given in anonymised form with a reporting restriction but on 26 August 2015 the judge lifted the reporting restriction and anonymity order after the plaintiff indicated he did not intend to appeal.

Comment

This case demonstrates, once again, the high threshold which applies when a plaintiff seeks an injunction under Articles 2 and 3 of the ECHR.  Although there were clear threats to the plaintiff’s life he could not demonstrate that these were “caused or materially contributed to” by newspaper coverage which made serious allegations of criminality against him.  The factual background to the case is complex but the result is unsurprising.  It seems that the plaintiff has become a target for dissident Republican groups but he could not show that his was a result of the newspaper coverage.

The judge’s view that Article 8 was engaged is more surprising – particularly in the light of the decision of the UK Supreme Court in Re an application by JR 38 for Judicial Review ([2015] UKSC 42 (see our case comment).  A more conventional view is that a person has no reasonable expectation that allegations of past or threatened criminal activity will remain private.

The claim in harassment appears to have been a non-starter, bearing in mind the obvious wide latitude given to the media in the reporting of public interest allegations of the kind in issue in this case.

It is clear that the newspaper had launched a serious attack on the plaintiff’s reputation. He did not, however, sue for defamation – which might at first sight appear to be the obvious cause of action.  This was perhaps for two reasons.  First, the result of the much criticised but still applicable “Rule in Bonnard v Perryman” is that he would not have been able to obtain an interim injunction – the media were claiming that the allegations were true.  Second, no legal aid is available for defamation claims – and Conditional Fee Agreements are not available in Northern Ireland.  Although the position is not clear from the report, the plaintiff may have been able to pursue his claims under Articles 2, 3 and 8 with the benefit of legal aid.

The attacks on the plaintiff’s reputation were very serious indeed and his apparent inability to obtain access to justice to bring a defamation claim might (depending on an analysis of the full factual background), raise an issue under Article 6 of the ECHR.

The decision has, understandably, been welcomed by the media, being reported by the Belfast Telegraph under the headline “Judge throws out suspect’s legal bid to gag newspaper”. Sunday World made its position clear with a story about the decision entitled “Gangster’s bid to silence Sunday World booted out of court”.


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