James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank all Deputies who contributed to this debate. I thank Senator McDowell for putting forward his Bill and Deputy O'Callaghan who had put forward a similar Bill.

As the Minister of State with responsibility for youth justice I am particularly pleased to support this Bill in the House today. There have been a number of proceedings in the courts since the Court of Appeal decision in DPP and ECv.The Irish Times and others, which involved very tragic circumstances where families have been deeply upset by the fact that their child who was killed cannot be named in the media as a result of this judgment. I can only imagine how deeply upsetting this is for those families not to be speak openly about their child in the media in such circumstances. There is also a deep sense of injustice where a person convicted in relation to a child's death cannot be named due to the fact that this would have identified the deceased child.

A number of detailed points were raised by Deputies and I will try to answer them. First I will make a general point about the drafting and the position as it was understood before the judgment of 29 October 2020 in the E.C. and The Irish Times case. This issue has been raised by a number of Deputies, including Deputies Howlin, O'Callaghan and Byrne. Before the E.C. judgment there was a view that the reference to a child in section 252 did not refer to a deceased child. This meant that a perpetrator and a deceased child could be identified but only if such particulars were not likely to lead to the identification of a child witness or a living child victim in the proceedings. The existing section 252 is quite clear that no report may be published that includes any particulars likely to lead to the identification of a child victim or child witness. The Bill as passed by the Seanad therefore restores, if that is the correct word, the law to that position. Subsection (1A) effectively provides that subsection (1) does not apply to a deceased child. However the policy is to ensure that in doing so, it will not be interpreted as an intention to take away the existing protections for a child witness or for a child accused.

There were some issues raised on Second Stage in this House and in the Seanad as to whether the Bill affords flexibility where there is a deceased child victim as well as a living child witness or another child victim in the same proceedings. Deputy O'Callaghan raised concerns that under subsection (2A), the identity of a deceased child could not be published in circumstances where there is a living child witness. This concern was also shared by Senator McDowell. In the light of these concerns there have been further considerations and consultations with the Attorney General and it is intended that an amendment will be brought on Committee Stage revising subsections (2) and (2A) to put beyond any doubt that where there is a deceased child and another child witness to the proceedings, the court may dispense with reporting restrictions, subject to conditions, including publishing the identity of the deceased child, as long as this is in the best interests of the living child victim or witness.

If, as in the majority of such cases, the issue only relates to deceased children, then the legislation operates quite straightforwardly to allow families to grieve, to have their children remembered in public and for perpetrators to be named as appropriate. The trauma that can be caused by unnecessary restrictions in this regard has clearly been articulated by Deputies Murnane O'Connor and Higgins. However, if there are living children who are party to the proceedings and who might be identified, they are entitled to protection and the protections cannot simply be disapplied. In such circumstances it will be a matter for the courts to decide the appropriate balance to be met by considering the best interests of any living child witness or victim. The courts have flexibility to decide what particulars can be revealed and to what extent. The restrictions on identifying a child accused are there for good reasons but they are not absolute and, as I have said, it is a matter for the courts to decide in these difficult cases.

Section 1(2) of the Bill deals with retrospectivity. Provision is made so that the changes effected will apply with immediate effect both to the reporting of old proceedings as well as to new proceedings. This means that the identity of a deceased child that could not be published since the decision of the Court of Appeal in DPP and EC v. The Irish Timesand others can be published once the amended section 252 has been commenced. It also follows that the identity of an adult accused or convicted in relation to such a death can also be published once the amended section 252 has been commenced.

Deputies Howlin and Carroll MacNeill referred to those families who do not wish to see media references to their deceased children. Public intrusion on deaths within a family can have a devastating effect on the well-being of such families and they have my greatest sympathy. My officials did look at options to address this but there is no simple answer. The clear majority view is that the automatic default should be that the reporting of the identities of deceased children should be allowed. Even in cases where there is a verdict of not guilty by reason of insanity, where due to mental illness a parent or sibling was involved in killing their child or sibling, not all families or members of such a family will welcome restrictions on reporting. The media's role in reporting on criminal trials is an important part of the constitutional requirement under Article 34.1 of the Constitution that justice be administered in public. It is only in exceptional circumstances, prescribed by law, that there are exceptions to this. The logic behind the Children Act is the protection of the best interests of children who appear in court proceedings. To go outside that parameter and try to take into account the interests of a wider group of children and adults creates significant difficulties. I do not have a solution but the Minister and I have asked our officials to see if it is possible to bring forward a proposal to address this issue. It will not be possible, however, to bring it forward in the context of this Bill. The key issue raised is where there is a verdict of not guilty by reason of insanity in a homicide case and whether it would be possible to have a provision that might allow the DPP to bring forward an application in particular cases where there is only one family involved and it is in the best interest of surviving children to have some reporting restrictions, even where those children were not directly involved in the proceedings. Broadening anonymity protections for witnesses and victims to include other children who are affected by proceedings but are not directly involved in proceedings would set a precedent in relation to other proceedings where children are affected by the publicity in a case but are not directly involved in those proceedings. There are many areas of criminal law where this would also be the case.

That would have broader implications for areas outside the scope of the Children Act and would require more detailed examination from both a policy and a legal perspective.

I thank all the Members for their contributions. This is a delicate matter and I believe we would all agree that there is a degree of urgency in resolving it. I look forward to working with the Members to bring this legislation to a successful conclusion.

Every parent should have a right to openly and publicly speak the name of their child. Sadly, that is not currently the case where their child was killed as a result of a crime. That has understandably caused extreme distress for families and for their communities. What we are doing today with this legislation is restoring the right to these families to be able to speak their child's given name and to be able to honour their memory. Importantly, it also restores the right of the media to openly and fairly report on cases where a child has been killed as a result of a crime, including child murder victims.

I thank the Deputies across the House for their support for this very important and urgent legislation. We are all determined to get it enacted as quickly as possible.

See this speech in context