A gagging order in favour of a convicted murderer is the latest eye-watering setback for the media under expanding privacy law.

The gagging order, issued by the High Court of Northern Ireland this month, prohibits the Belfast Telegraph and Sunday Life from publishing any unpixelated photograph of convicted killer Kenneth Callaghan.

It also bans publication of anything identifying his address, any location which he frequents, and his travel and work arrangements.

Further, it bans publication of a photograph of any serving prisoner who is, or has been, assessed for release at a particular Prisoner Assessment Unit in Belfast, unless the Northern Ireland Office is given 48 hours’ prior notice or all distinguishing features are obscured.

It is one of the most strident examples yet of the application of creeping privacy law, under Article 8 of the European Convention on Human Rights, to protect someone who at first blush appears undeserving.

Callaghan’s horrific offence involved the brutal killing, in 1987, of a 21-year-old woman who lived a few doors away from him. He broke into her house, hid, then struck her numerous times over the head with a hammer.

He tied her hands, placed a cushion-cover over her head as a hood, and raped her, “either as she was dying, or when she was dead” according to the judge. He then went out to the cinema that evening with a girlfriend.

As he was being considered for release at the end of his life sentence, the press began to publish emotive articles using phrases such “evil Callaghan”, “back on the streets”, and “notorious sex killer”.

He was snapped at a café by a press photographer but succeeded in obtaining the injunction described above.

The judge, Mr Justice Stephens, said even criminals have a right to privacy, and the general public need not know where they are living following release.

He said: “The attributes of [Callaghan] certainly remove all expectation of privacy as far as the police, the Prison Service and the Probation Service are concerned, but there is a residuum of privacy afforded to convicted criminals.”

There was conflicting evidence about the risk Callaghan posed. Callaghan was deceitful and breached rules about new relationships he had formed with women in 2007 and 2008 during assessment.

At different stages of his pre-release assessment, a probation officer felt the risk of re-offending was “high”, while psychologists believed it was “low”.

The judge himself considered there was a “low to medium risk” that the former killer would re-offend but he decided identification of Callaghan and his whereabouts would destabilise his employment and accommodation prospects and increase the risk to the public by undermining his re-integration into society.

He criticised the newspapers’ publisher for “seeking to introduce its own Megan’s law”, which exists in America to keep the community informed of sex offenders’ whereabouts.

The judge was concerned that the coverage of Callaghan’s imminent release had not been balanced with information that he would be subject to close supervision by criminal justice professionals.

He was also concerned that targeting ex-offenders in the press could trigger vigilante attacks.

“I consider that the taking of photographs and the threatened publication by the [publisher] of unpixelated photographs in connection with press articles calculated to incite hatred of and animosity and hostility towards him is capable of amounting to harassment,” he added.

The jaw-dropping injunction granted to the Northern Ireland Office, which requires prior notification to be given about photographs of certain prisoners awaiting release from prison, was issued on the footing that publication of such images was likely to interfere with its statutory duty to secure the resettlement and rehabilitation of offenders.

If other ex-offenders and judges follow suit, we are likely to see the press increasingly on the back foot in its reporting about previously dangerous offenders and their whereabouts after release from jail.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
To contact Nigel telephone 0800 0731 411 or e-mail [email protected].