Michael McDowell (Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time".

The Children (Amendment) Bill 2020 has emerged in certain circumstances which may be somewhat surprising to many. The Court of Appeal's civil division delivered a judgment on 29 October last. The presiding judges were the President of the court, Mr. Justice Birmingham, Ms Justice Kennedy and Ms Justice Ní Raifeartaigh. The case was the People at the Suit of the Director of Public Prosecutions and EC.The appeal they were dealing with was an appeal brought by The Irish Times, Independent News & Media, RTÉ and the NewsGroup newspapers against an order made initially by Mr. Justice Michael White and subsequently by Ms Justice Carmel Stewart in the High Court directing that the identity of the child, the subject matter of the prosecution in question, who was the victim of what was an apparent homicide, should not be revealed. The circumstances are quite particular to the facts as found in that case, one of which was that, in the end, the accused person was found not guilty by reason of insanity while the question of the child being identified as the alleged victim was the subject matter of the two judicial directions to which I have referred.

The matter was appealed to the court of civil appeal by the newspapers in question, and the judgment handed down on 29 October 2020 in effect rejected their appeal on the grounds that section 252 of the Children Act and the definition of "child" did not exclude a deceased child, the victim of an alleged offence. Of course, the matter was decided on its narrow facts but the reasoning of the court had a much wider implication because it referred to cases where there were convictions to start with and also to cases in which a variety of offences could have occurred and a variety of circumstances might have arisen. In response to that decision, and particularly in response to what was stated by the President of the Court of Appeal, Mr. Justice Birmingham, in paragraph 14 of his decision, this Bill was generated by the Independent group of Senators in this House, whose support I am grateful for.

Paragraph 14 states:

I appreciate the media may find the ruling surprising and that they may say that it involves a radical departure from what had been a long-established practice. They may say that the outcome is an undesirable one and may be in a position to make that argument with some force. Nonetheless, the language of the statute is clear and unequivocal and, enjoying a presumption of constitutionality as it does, must be given effect to. If change is required and if it is desired to return to previous practice where it was possible to report cases involving the deaths of children, then it is a matter requiring intervention by the Oireachtas.

It is in that context, without challenging at all the correctness of the decision of the Court of Appeal, but bearing in mind its scope, that this Bill was introduced to the House.

In parallel with the Independent group's initiative in introducing this Bill to the House, my good friend Deputy Jim O'Callaghan introduced a Private Members' Bill to much the same effect in Dáil Éireann. Both he and I discussed between us, and subsequently with the Minister, whom I welcome to the House today, and her officials, how this matter could best be remedied. The fact that my Bill was chosen was partly the luck of the draw. It does not reflect in any way on Dáil Éireann or Deputy Jim O'Callaghan's Bill; it just has to do with what was considered the most expeditious way of dealing with the legislation.Obviously, it is a huge injustice to the parents of a child who is killed in a homicide that media cannot carry coverage of the fact that their child was the subject of court proceedings for an offence in which a conviction took place when the public will probably in most cases be well aware of the identity of the person convicted. It is a major reduction in the rights of apparent free speech and the rights of parents to tell their story in public and to express their tragic loss in many cases and their feelings about what has happened to their child that the law should have this clearly unintended effect.

This House and the other House are intended to presume the consequences of the clear language we use. Going back to 2000, when the Children's Bill was enacted, nobody saw the Bill as having this effect. Perhaps that is a signal warning to us all to be extremely careful in parsing and analysing legislation and not to rush things through without careful consideration of precisely what we are doing. For 19 years after that legislation was passed, nobody thought of the dimension which arose in the DPP v.EC case and nobody thought to suggest there was a problem with it.

I welcome the approach being taken by the Minister for Justice, Deputy McEntee, to this matter. All of us on all sides of both Houses, I presume, want to take up the invitation put by the President of the Court of Appeal, Mr. Justice Birmingham, that if this is not the desired outcome, then it is a matter for the Oireachtas to deal with. I welcome the open attitude of the Minister in adopting one or other of the two Bills, either Deputy O'Callaghan's or mine, signalling her willingness to do that and getting on with the process of legislating in this matter.

Today is just the Second Stage and the Minister's Department has kindly indicated to me that it proposes making various amendments to the rather simple formulation which I and my colleagues have put forward as a remedy to this problem. There are unforeseen consequences lurking here, whichever way we go. To take one example, if a sibling who was a child murdered younger siblings, can those children be identified in circumstances where the person who murdered or killed those children is also a child? There are corners around which we have to look and I welcome the fact that the Department is putting a lot of effort into making sure that in remedying one problem, we do not create another one or allow it be said that a rush to legislate opened up another problem. I recognise the Minister's willingness to consider the matter and to proceed carefully with it. I fully concede that it is not devoid of complexity. Such amendments as the Minister has outlined to me through her officials seem to be going in the right direction but I ask that whatever is done be considered very carefully.

The example I gave is just one example. I have never been overly attracted to the notion that in regard to all child offenders for all time, including 17-year-olds, it should never in any circumstances be permissible to refer to the fact that they were convicted of an offence. I know this comes from a long line of law to the effect that children are in a special category, that they must be capable of redemption and that their reputations cannot be tainted for all time by a childhood offence. I accept that but there are sometimes practical outworkings of that which cause immense difficulties.This House will be aware of the difficulties that arose in a similar case in the United Kingdom where the media did or did not behave well regarding a particular murder of a child, and all the complexities which followed on from that.

The principle of this Bill is, effectively, to take up the invitation given to the Houses of the Oireachtas by Mr. Justice Birmingham to legislate in the matter if the unexpected and unwanted implications of the judgment in the DPP v. EC case are to be readdressed by the Legislature. I, therefore, believe there is all-party backing for the principle of this legislation. I concede that it will require very careful tweaking this way or that and very careful consideration. Although the Minister is under immense pressure to legislate very fast on this, and I have no problem with speeding legislation through the House, it will have to be careful. These particular matters I have raised should be addressed.

We recently had a case, and again I will be very careful in what I say, in which a person legally considered a child was the subject of what appears to be a homicide of some kind, subject to defences. It is strange that the result of section 252 and the judgment of the Court of Appeal has resulted in the situation that great publicity is given to an event and then a subsequent criminal prosecution is wholly divorced from that great publicity. The public are not entitled to know whether there have or have not been prosecutorial consequences for that particular death.

We are under these kinds of pressures but we must get this right. In those circumstances, I commend this Bill to the House. I thank the Minister for the generous approach she has adopted. I thank Deputy O'Callaghan for his generosity in his discussions with me on the matter. I, therefore, have pleasure in moving the Bill on Second Stage. I look forward to a detailed Committee Stage session on this Bill to make sure it is right and does not do anything none of us wish to be the consequence.