Pre-charge privacy: The Appeal of the teen hacker

The Court of Appeal in Belfast recently considered the case of the “Talk Talk hacker”, Aaron Sterritt, and whether naming the schoolboy as a suspect before he was charged breached his right to privacy.

Background

The Appellant 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 Appellant’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. 

High Court

In 2016, the High Court concluded that this did not breach the Appellant’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 over 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, dismissing the Appellant’s claim, distinguished the Applicant from 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.

Court of Appeal

It was conceded that the anonymity afforded to the Appellant in the High Court on account of his age was no longer justified as the “schoolboy” is now 21 years old. His appeal focused on the issue of pre-charge privacy being afforded to his 15-year-old self. 

The Court of Appeal considered:

[t]he age of the defendant will be a matter of unmistakable significance. The open justice principle is at its strongest in respect of the right of the press to publish a fair and accurate account of court proceedings. Even here, however, the legislative steer is towards the anonymisation of children and young people charged with offences. The court concerned will be obliged to act compatibly with the defendant’s right to respect for private life under Article 8 ECHR. This exercise will entail balancing the principle of open justice and the freedom of expression rights enjoyed by media organisations under Article 10 ECHR.

In reaching the same conclusion as the High Court, albeit with slightly different reasoning, the Court of Appeal dismissed the Appellant’s appeal.  

Comment

The question of pre-charge publicity is to be answered by the Supreme Court shortly. The question of post-charge publicity, in cases of accused children, is answered by the Criminal Justice (Children) (Northern Ireland) Order 1998. The question of Aaron Sterritt falls between the two. It occurs that the answer of the Court of Appeal may have been influenced by his subsequent charge and conviction. 

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