Alice-Mary Higgins (Independent) | Oireachtas source

I am conscious of the nuance in this and that we want to move forward. To clarify, I do not have a single concern; I have two concerns, and the Minister has addressed one of those. I am concerned about how section 93 would be applied. Could it be too narrow in its application or, potentially, could it be too wide in its application? Those are the nuances to be looked at. That is why, although it is not perfect, I had attempted to create new law rather than rely on section 93, which I confined to dealing with court proceedings. I looked to something different. Perhaps the Minister could look to some of the spirit of those and see if there may be space on Report Stage to fine-tune that.

I was not simply speaking about my concerns in regard to a child who is accused or convicted, and I also have concerns in regard to a child who might be a victim. My concern is that, as it stands, a blanket decision seems to be made. They are tied together in such a way that we might need to be able to provide for some nuance which would allow for different treatment, in the same case and in regard to the same proceedings, in regard to a child who is a victim and a child who is accused or convicted.

Something has been lost in the new amendments, although I recognise what the Minister is trying to do. In the original Bill as proposed by Senator McDowell, subsection (3) stated: “The court may, to any specified extent and subject to such conditions as it may stipulate, dispense with the requirements of subsection (1) in any case”. I wanted that to be more nuanced. It was not that subsection (1) would definitely apply on or off in a case, but at least it allowed for the nuance of conditions. It may be that a victim would be named but that his or her school would not be talked about. There may be balance to find in terms of how we ensure protection. My worry is that any situation in which there is a child who is a perpetrator might effectively end up automatically leading to a situation where the child who is a victim cannot be named, and Senator McDowell outlined one scenario but there are other scenarios that we know of.

I would like this legislation to allow, to some extent, for what was proposed in subsection (3) of the original proposed legislation and in my amendment No. 7. Amendment No. 7 relates to a child who is accused or convicted of murder, attempted murder or manslaughter, and manslaughter, of course, is a tragedy that can happen in these situations, as was outlined earlier. The amendment states: “Nothing in this subsection should prejudice a court’s application of subsection (3) in a manner which it believes appropriate, having regard to the interests of a child who is a victim of an offence or a child who is a witness and to the public interest including the protection of children generally.”I worry that at the moment the mechanism that allows for a nuanced approach, for example, for a court to say a child who was a victim can be named subject to certain conditions, is absent. It may be that the adding of certain conditions, such as not mentioning where it took place, could allow for appropriate protection. Removal of the name and the image are the core pieces. One does not want somebody who commits a manslaughter at 13 or 14 years of age being shadowed into their 30s and 40s and the rest of their life by their image or name being used and their story being told again and again. The idea is that the name and image of somebody as a perpetrator might be protected and as much protection as possible might be given in relation to information that could lead to his or her identification but that it be done in a way that still allows a victim to be named.

My problem at the moment is the legislation is still binary in that in regard to a particular case, the naming applies while in relation to another one, it does not. This is rather than being able to unpick the particular circumstances. All cases to which this might apply will be awful cases. They will have awful nuances and incredibly vulnerable people will be affected so we might need nuanced legislation that allows us to treat each case with the diligent care that is needed. Luckily, they are exceptional cases. They are not the normal case that will happen but, where they do, maybe we need something more nuanced.

Perhaps the Minister could look to the original subsection (3) in Senator McDowell's proposal or to my amendment No. 7. I will not press it my amendment in opposition to the Minister's amendments but perhaps she could look to those proposals and consider whether it might be possible to bring forward something more fine-tuned on Report Stage.