Michael McDowell (Independent) | Oireachtas source

I agree with Senator Higgins. I walked away from the amendment I originally proposed in order to get a coherent text on the basis that the Minister wanted her amendments to go through. The amendment I originally proposed tried to bring elements of flexibility into the determination and not to put a judge into a straitjacket or put everything into a binary yes-no, that this is the law, that nothing else applies and that there is nothing else to be considered.For instance, in the event that the Minister's text is taken to be the holy Bible from now on, take the case of a child who was killed by an adult. If that child's brother testifies as to what he saw and if an account of the court proceedings records him saying that an adult came into the house and killed his sibling, a literal interpretation of this law means that once it is in the public domain that the child's brother or sister gave such evidence, it will be unlawful and an offence to name the victim. This is because under the Minister's text, section 93 states it would tend to identify the witness.

I do not believe that is a necessary conclusion. I know this is urgent and the media are demanding that this be dealt with urgently. Deputy O'Callaghan and I brought our proposals forward in a sense of urgency with the approach of facing up to this issue quickly. As I read the Minister's proposals, however, the court cannot allow the child victim to be identified if the child victim's sibling has testified in the trial and would be thereby identifiable from any identification of the dead child. This is even in the case of a total stranger coming into a house and killing a child. That cannot be right.

I accept there is an urgency but we do not have to just run at it like a bull in a china shop and say that is the result we want. There could well be a case in which it would be a huge injustice to a family to tell them that they cannot name their dead child because his or her brother or sister gave the crucial evidence in the trial. That is why the two approaches both Deputy O'Callaghan and I adopted allowed for the flexibility that Senator Higgins spoke about. There is not a one-size-suits-all law which applies rigidly in every case. There are occasions when it would be perfectly reasonable for a judge to state that the mere fact that a child witness could be identified by identifying the deceased child should not, at the end of the trial if there has been a conviction, be real grounds for deciding that the identity of the child victim should be kept secret. The mere fact that somebody looking at the report of the proceedings might be able to work out that it was a sibling who gave the vital evidence is not of itself grounds for saying that the child victim can never be identified.

That is what we are about to enact if we accept the Minister's wording, however. The worrying feature of all of this is that we are crashing from one extreme to another.We saw what happened in the Court of Appeal. It said the meaning of the wording was the plain and ordinary meaning and that where the consequence of identifying the deceased was that people would be able to work out the identity of the witness who gave evidence, the brother of the deceased, there could be no identification. The court said it would be an offence for the parents to name the total stranger who came into their house and killed one of their children because of the very peculiar circumstance that one of their other children gave evidence in the matter. We are in a bit of a hurry on this but we are not in a total hurry. Another ten days or two weeks will not be the end of the world if the Minister can sort out these kinds of cases.

We saw what happened in the Court of Appeal regarding the ordinary and natural meaning of a statute. It said it means X and that is that. It implied that if one believes that is a peculiar result, one should go off to the Oireachtas and change it if one wants. Here we are about to enact a law that is going to stipulate that where a stranger comes into a house and kills a child and the only witnesses is the child's brother, which becomes apparent from a court report, the deceased cannot be named because it would tend to identify the witness who gave evidence in the case. That cannot be right. We should not go down that road blindly because, inevitably in two or three years, this kind of case will crop up. The courts will point to the plain and ordinary meaning of the words in what we enacted and state the wording gave the judge no discretion. It will be said it is the end of the matter.

The reason for saying child witnesses are to be protected is very plain. It is to protect young children who have been raped and assaulted and to protect them from all sorts of other things that can happen to them, including being badly beaten up or badly mutilated. Why, however, can we not allow the court some discretion regarding the two situations? Why do we have to have an absolute rule to the effect that if any report tends to give rise to a child witness being identified, no matter what the circumstances, the child victim must not be named because it would make it apparent who the child witness was, no matter the result of the case? Why can we not have circumstances whereby, at the end of a trial, the judge can say it is acceptable to state the chief witness for the State was the brother of the deceased? No injustice would be done to the child at all by that fact being known. Everybody in court would have seen who the child witness was and would know precisely why that child was a witness, why he was in the home and what he was doing in the bedroom or wherever he was when he saw the homicide take place. No injustice would be done at all. Why do we not give judges the flexibility that such a situation demands? Why would we possibly pass a Bill now implying that according to an ordinary and natural interpretation of a new law that we are supposed to have thought through on this occasion and regarding which the difficulty of the matter was supposed to have been realised, the child victim cannot be identified because it would tend to identify the child witness? That is just crazy stuff. We should not go there. We should not do it. I appeal to the Minister not to put into law something that she herself would not support for a minute. The flexibility has been taken out of the original proposed amendment of the law.An absolutely rigid rule has been put into it whereby if any report would tend to identify a child witness, no matter the circumstances, the other child victim could never be named. That is wrong.

I appeal to the Minister to take on board what I am saying. I am not thinking about silly items. There are many cases where a child would give evidence about an invasion of the home. Thank God there are not many cases where one of the children gets killed. To make it part of our law that the child victim can never be named because an essential witness to the State would thereby be identified, in every case no matter the outcome of the case, is crazy. We should not go down that route.

I have done my best on Committee Stage to try to set out what the Minister and the Government want to be the law in a rational and readable way. It was always my intention, nonetheless, to come back on Report Stage and ask for some degree of flexibility in this matter. We cannot have unintended consequences flowing from our legislation simply because we are in a rush. The Children Bill was originally in gestation for a long time and what turned out to be a mistake was made. We are now trying to remedy that mistake but we are being invited to make another mistake on the basis that it is urgent for us to deal with the matter. I do not accept that this is good governance, law or drafting of good legislation. The point made by Senator Higgins about bringing back the flexibility in the original amendment deserves very close scrutiny. I appeal to the Minister, the Department and the Chief Parliamentary Counsel to look at what they are doing and not ask us to make a terrible mistake a second time.