MURRAY v NEWSGROUP NEWSPAPERS Ltd

• Jurisdiction: Ireland
• Judgment Date: 18 June 2010
• Date: 18 June 2010
• Docket Number: [2010 No. 4661
• Court: High Court

Murray v. Newsgroup Newspapers Ltd.

Michael Murray

Plaintiff

and

Newsgroup Newspapers Limited, Independent Newspapers (Ireland) Limited, Independent Star Limited, The Commissioner of An Garda Síochána, The Minister for Justice and Law Reform, Ireland and The Attorney General

Defendants

[2010] IEHC 248,

[2010 No. 4661 P]

High Court

Constitution - Personal rights - Right to privacy - Right to life - Right to freedom of expression - Breach of rights - Injunction - Balancing of competing rights - Public interest - Publication of identity and whereabouts of convicted sex offender - Public interest in knowing identity and whereabouts of convicted sex offenders - Public interest in ensuring re-integration into society of convicted sex offenders unlikely to re-offend - Whether proper evidence adduced to justify curtailment of freedom of expression of press.

Injunction - Interlocutory injunction - Further publication of identity and whereabouts of convicted sex offender - Personal rights - Test where freedom of expression to be restricted - Interference with personal rights - Whether convincing case established by proper evidence - Where balance of convenience lies when information already in public domain.

The plaintiff was convicted of serious sexual offences in the United Kingdom in 1989 and, following his release from prison, committed further such offences in this jurisdiction, for which he was convicted and sent to prison in 1996. Upon his release from prison in 2009, the plaintiff was the subject of frequent articles and photographs in the first, second and third defendants' newspapers. All such articles identified the plaintiff, discussed his previous convictions, gave his whereabouts and stated that gardaí believed that he was at risk of re-offending.

As a result of such articles, the plaintiff was advised by his probation officer to stay indoors and keep a low profile. Nevertheless, the plaintiff was photographed outside his accommodation and was frequently visited by the gardaí. The plaintiff moved from one address to another, each time being forced to move on, either by the landlord or because he did not feel safe. He ended up having to stay in hotels and bed and breakfast accommodation around Leinster. In addition, as a result of the publicity, the plaintiff had to resign from voluntary employment he had secured and he was diagnosed with depression and anxiety.

The plaintiff instituted proceedings seeking injunctive relief and damages for mental pain, distress and anguish caused by interference with his rights under the Constitution and the European Convention on Human Rights, principally his right to privacy and his right to life. The plaintiff brought an application for interlocutory injunctions against the newspapers prohibiting them from further publishing photographs of him, information in relation to where he lived or stayed, other information which would enable members of the public to locate him and information supplied by him to the gardaí pursuant to the Sex Offenders Act 2001.

The newspapers claimed that they had reason to believe that the plaintiff constituted a danger to members of the public as there was a risk that he would re-offend, as he did following his release from prison in the United Kingdom. They submitted that the public interest was best served by information regarding the plaintiff being brought into the public domain and that their right to freedom of expression outweighed any rights that the plaintiff asserted were being breached.

Held by the High Court (Irvine J.), in refusing interlocutory relief, 1, that the unenumerated constitutional right to privacy was not an unqualified right and might be balanced against other competing rights and interests, such as freedom of expression, bearing in mind the public interest.

McGee v. Attorney General [1974] I.R. 284 andNorris v. Attorney General [1984] I.R. 36 applied;Kennedy v. Ireland [1987] I.R. 587, Herrity v. Associated Newspapers (Ireland) Ltd. [2008] IEHC 249,[2009] 1 I.R. 316 and Von Hannover v. Germany (App. No. 59320/00) (2005) 40 E.H.R.R. 1 followed.

2. That there was a public interest in members of the public being able to identify convicted sex offenders so as to protect themselves against them. However, there was also a competing public interest in ensuring that such persons were re-integrated into society if they were considered unlikely to re-offend. Where the latter public interest outweighed the former, the freedom of expression enjoyed by the press could be interfered with in order to protect the personal rights of such persons.

Callaghan v. Independent News & Media Ltd.[2008] NIQB 15, (Unreported, Northern Ireland High Court, Stephens J., 8th February, 2008); [2009] NIQB 1, (Unreported, Northern Ireland High Court, Stephens J., 7th January, 2009) approved.

3. That, where much of the information which a plaintiff sought to prohibit being further published was already in the public domain, it would be difficult for him to demonstrate that the balance of convenience lay in favour of restricting publication.

Foley v. Sunday Newspapers Ltd. [2005] IEHC 14,[2005] 1 I.R. 88 followed; Callaghan v. Independent News & Media Ltd. [2008] NIQB 15, (Unreported, Northern Ireland High Court, Stephens J., 8th February, 2008); [2009] NIQB 1, (Unreported, Northern Ireland High Court, Stephens J., 7th January, 2009) distinguished.

4. That, in cases where freedom of expression was sought to be restricted by an interlocutory order, the court would scrutinise the application with particular care to ensure that the plaintiff had demonstrated, by proper evidence, a convincing case to bring about a curtailment of the freedom of expression of the press. In addition, the plaintiff had to show that the interference with the right to freedom of expression would be justified by one of the recognised exceptions to that right and would be proportionate to the aim to be achieved.

Mahon v. Post Publications Ltd. [2007] IESC 15,[2007] 3 I.R. 338 applied; Foley v. Sunday Newspapers Ltd.[2005] IEHC 14, [2005] 1 I.R. 88 and Cream Holdings Ltd. v. Banerjee [2004] UKHL 44, [2005] 1 A.C. 253 followed.

5. That, where the plaintiff sought to rely on his right to life as a justification for interfering with the freedom of expression of the press, and his whereabouts and physical appearance had been known to significant numbers of people for a substantial period of time, he could have adduced evidence of warnings or threats actually received in that period, as well as statistical evidence of the rate of attacks on convicted sex offenders in Ireland or the effect that media publicity might have on increasing the risk of such an attack being perpetrated. Where such evidence was not adduced, the plaintiff failed to establish a convincing case that the freedom of the press would be curtailed at the trial of the action.

Callaghan v. Independent News & Media Ltd.[2008] NIQB 15, (Unreported, Northern Ireland High Court, Stephens J., 8th February, 2008); [2009] NIQB 1, (Unreported, Northern Ireland High Court, Stephens J., 7th January, 2009) distinguished.

6. That, in order to convince the court that his personal rights should outweigh the public interest in members of the public knowing his identity and whereabouts, a convicted sex offender should produce cogent evidence to suggest that he was unlikely to offend again, as well as evidence to the effect that the anonymity he sought would facilitate his re-integration into the community. The failure to adduce such evidence was a serious omission.

Callaghan v. Independent News & Media Ltd.[2008] NIQB 15, (Unreported, Northern Ireland High Court, Stephens J., 8th February, 2008); [2009] NIQB 1, (Unreported, Northern Ireland High Court, Stephens J., 7th January, 2009) distinguished.

Cases mentioned in this report:-

American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396; [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504.

Bonnard v. Perryman [1891] 2 Ch. 269; (1891) 7 T.L.R. 453; [1891-4] All E.R. Rep. 965.

Callaghan v. Independent News & Media Ltd.[2008] NIQB 15, (Unreported, Northern Ireland High Court, Stephens J., 8th February, 2008); [2009] NIQB 1, (Unreported, Northern Ireland High Court, Stephens J., 7th January, 2009).

Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88; [1984] I.L.R.M. 47.

Cogley v. Radio Telefís Éireann [2005] IEHC 180, [2005] 4 I.R. 79.

Cream Holdings Ltd. v. Banerjee [2004] UKHL 44, [2005] 1 A.C. 253; [2004] 3 W.L.R. 918; [2004] 4 All E.R. 617.

Dunne v. Dun Laoghaire-Rathdown County Council[2003] 1 I.R. 567; [2003] 2 I.L.R.M. 147.

Educational Co. of Ireland Ltd. v. Fitzpatrick[1961] I.R. 323; (1961) 96 I.L.T.R. 161.

Foley v. Sunday Newspapers Ltd. [2005] IEHC 14, [2005] 1 I.R. 88.

Herrity v. Associated Newspapers (Ireland) Ltd.[2008] IEHC 249, [2009] 1 I.R. 316.

Kelly v. B.B.C. [2001] Fam. 59; [2001] 2 W.L.R. 253; [2001] 1 All E.R. 323; [2001] 1 F.L.R. 197.

Kennedy v. Ireland [1987] I.R. 587; [1988] I.L.R.M. 472.

McGee v. Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

M. v. Drury [1994] 2 I.R. 8; [1995] 1 I.L.R.M. 108.

Mahon v. Post Publications Ltd. [2007] IESC 15, [2007] 3 I.R. 338; [2007] 2 I.L.R.M. 1.

Murphy v. I.R.T.C. [1999] 1 I.R. 12; [1998] 2 I.L.R.M. 360.

Norris v. Attorney General [1984] I.R. 36.

The Observer and the Guardian v. United Kingdom(App. No. 13585/88) (1992) 14 E.H.R.R. 153.

R. v. Shayler [2002] UKHL 11, [2003] 1 A.C. 247; [2002] 2 W.L.R. 754; [2002] 2 All E.R. 477.

Reynolds v. Malocco [1999] 2 I.R. 203; [1999] 1 I.L.R.M. 289.

Sciacca v. Italy (App. No. 50774/99) (2006) 43 E.H.R.R. 400.

TV3 Network Services Ltd. v. Fahey [1999] 2 N.Z.L.R. 129.

Venables v. News Group Newspapers Ltd. [2001] Fam. 430; [2001] 2 W.L.R. 1038; [2001] 1 All E.R. 908.

Von Hannover v. Germany (App. No. 59320/00) (2005) 40 E.H.R.R. 1.

Interlocutory injunction

The facts have been summarised in the headnote and are more...