A recent decision of the Court of Appeal that the media cannot name a deceased child victim of crime, on account of a provision of the 2001 Children Act has been met with concern by the news and media industry and calls for the Oireachtas to reform the legislation.
In October 2019, a woman who smothered her three year old child to death with a pillow was found not guilty by reason of insanity. Before the trial, on application of the Director of Public Prosecutions (DPP) and invoking section 252 of the Children Act 2001, the High Court ordered that the deceased child victim should not be identified and consequently that the woman could not be named as to do so would identify the child.
Section 252 states that in “any proceedings for an offence against a child . . . no report which reveals the name, address or school of the child or includes any particulars likely to lead to his or her identification . . . shall be published or included in a broadcast.” While this section serves a crucial role in ensuring anonymity to child victims of crime, particularly those who are victims of child sexual abuse, prior to this decision the media freely identified both victim and accused in child murder cases on the assumption that the section did not apply to deceased children.
RTÉ, Independent News and Media, News Group Newspapers Ltd and The Irish Times made an application to the Court of Appeal challenging the interpretation of the legislation. The media outlets argued that “child” in the Act does not include a deceased person who died before reaching the age of 18. They contended the effect of the order was to protect the anonymity of the accused only and not the child and that the media's entitlement to report on criminal trials is an important part of the constitutional requirement that justice be administered in public.
The Court of Appeal however found that the law had been properly applied by the High Court and dismissed the appeal. Mr Justice Birmingham was satisfied that it was “almost beyond argument” that the court proceedings were in respect of an offence against a child. He noted the definition of “child” was not in issue per se but the phrase “in relation to any proceedings for an offence against a child”. Counsel for the DPP said that the media outlets were attempting to “rewrite history” to the extent that they argued a deceased child ceases to be either a “child” for the purposes of the Act or that proceedings no longer relate to “an offence against a child” in those circumstances. Mr Justice Birmingham opined that it was open to the legislature to create such an exemption but it did not do so.
He therefore found it is not possible to interpret section 252 “as not including a deceased person who was a child at the time of death.” He appreciated the media may find the ruling “surprising” and “undesirable” being a “radical departure from what had been a long-established practice”. However, he said the language in the Act is “clear and unequivocal” and if change is required that is a matter requiring intervention by the Oireachtas.
The purpose of section 252 of the Children Act 2001 is to protect the identity of a child which the court can only dispense with “if it is satisfied that it is appropriate to do so in the interests of the child”. On the logic of this decision, a court could never dispense with this protection in the case of deceased child victims of crime as their interests cannot be determined. While the decision is premised on a question of legislative interpretation which literally speaking appears to be correct, it leads to an anomalous result and presumably one that was not contemplated by the drafters of the legislation.
The current position is that the media can only name a party charged with an offence against a deceased child if to name them would not risk identifying the child. That would rule out any accused parties related to or known to the child and the media will no doubt exercise an abundance of caution in circumstances where identifying the child constitutes a criminal offence. The decision has already resulted in the first ruling in the Central Criminal Court that a woman accused of murdering her children, who has been previously named by the media, can no longer be identified. The decision also presents the incongruous situation whereby the family of a murdered child cannot be identified and given coverage in the media for fear of identifying the child, effectively denying families who may wish to do so the opportunity to portray their child as more than a victim. In order to ensure clarity for all parties in these circumstances revision of the legislation is certainly required.
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