Legal briefing: Busy editors and the 'Lafferty defence'

On 4 June, David Lafferty, the editor of the Macclesfield Express, was acquitted of the charge that he had published details of a complainant contrary to Sections 1(2) and 5(1) of the Sexual Offences (Amendment) Act 1992. Some commentators have suggested that the verdict means that editors cannot now be responsible for every word that appears in their publications. But is this true?

In fact, the defence that David Lafferty ran is not new, and has been part of the Sexual Offences (Amendment) Act since its commencement on 1 August 1992. The trouble has simply been that, on the facts, it has always been very difficult for editors to fall within the defence.

Section 1 of the Act is well known: where an allegation or accusation of an offence under the Act has been made (offences include rape, incest, buggery, administering drugs to obtain intercourse, intercourse with a girl under 16) it is an offence to publish any matter that might lead to the identification of the victim or supposed victim. That protection lasts for their lifetime, whether or not the complaint is pursued or upheld.

Section 5 of the Act provides the following defences: the complainant may give their consent, which must be in writing and which must have been given freely, without ‘unreasonable interference with their peace or comfort”, or under Subsection 5, the person charged with the offence will not be guilty if he ‘was not aware, and neither suspected nor had reason to suspect’that the publication contained identifying material or allegations had been made.

Where material is published, Section 5(1) of the Act makes any proprietor, editor and publisher liable for prosecution and, if guilty, a fine not exceeding Level 5 on the standard scale (currently £5,000). The publisher may also be ordered to pay compensation to the person identified.

In the case of the Macclesfield Express error, Lafferty was able to prove that as a matter of course his role was not to see all of the stories in his newspaper, but only the more important ones. He had not seen, nor been told anything about, the story that mistakenly contained the identifying material. Lafferty was also able to show that where he did have involvement on stories, his approach was meticulous and careful. One suspects that, had the judge believed Lafferty to have been simply reckless as to the content of the paper, he would not have been successful.

Also important is the fact that, in this instance, the paper’s publisher, MEN Media, was willing to admit responsibility and entered a guilty plea. Without that, the judge may have looked to find an individual from the paper responsible.

In summary, if you want to rely on a ‘Lafferty defence”, you must be a highly regarded and thorough editor, clearly not be involved in the story and have the support of your publisher.

Importantly, however, editors must not forget that criminal proceedings are not the only stick with which they may be beaten. Where there are grounds, it is open to complainants to also commence civil proceedings for compensation.

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