REPORTING ON THE criminal justice system in Ireland is, as in most legal systems, subject to certain restrictions.

Usually designed to protect the vulnerable victims of crimes, particularly children, these restrictions are mandatory, automatic and flow from a number of disparate pieces of legislation.

But a recent decision by the Court of Appeal has considerably changed certain long-standing practices related to how the media reports on child murders.

Experts believe that it may also have implications for the victims of childhood sexual abuse who, when they reach adulthood, wish to waive their right to anonymity. Now, they may have to apply to the court for an order dispensing with the restrictions.

According to Senator Michael McDowell, the ruling could allow persons accused of murdering children to “hide behind the child’s privacy rights to conceal their own identity”.

So what happened?

On 29 October, Judge George Birmingham delivered a judgment in the Court of Appeal that gave a strict interpretation of certain reporting restrictions set down the Children Act 2001.

Specifically, Birmingham’s ruling related to section 252 of the Act, which created mandatory reporting restrictions where the trial relates to “an offence against a child or where a child is a witness in any such proceedings”.

In such circumstances, reporters are automatically and expressly prohibited from identifying “the name, address or school of the child” or any detail that might identify them.

Naturally, media outlets are also prohibited from publishing pictures that may identify the child victim or witness.

All of this is long-established, and all court reporters are well aware of the rules.

But in late October, Birmingham found that Section 252 has a much broader application — he ruled that the reporting restrictions also apply in circumstances where the child is deceased or has turned 18.

What’s the context?

Birmingham was delivering judgment in the Court of Appeal in a case taken by a number of media outlets.

In a nutshell, the case related to a woman, Ms C, who accepted responsibility for murdering her three-year-old daughter but pleaded not guilty by way of insanity.

Her trial began in October 2019.

On the same day that the jury was empanelled, the Director of Public Prosecutions asked the court to prohibit the media from naming the deceased child.

The DPP made the case that because the victim was a child, their identity was covered by the mandatory, automatic restrictions as provided for in section 252 of the 2001 act.

The judge in the case agreed and granted an order restricting the publication of the deceased child’s name.

As Birmingham explained in his later judgment, “the practical effect” of that order was that “the accused could not be identified”.

Naturally, this would have a huge impact on how the case can be reported.

Unhappy with that initial decision in October 2019, a number of media outlets joined together and made an application to the High Court to have the restrictions lifted, arguing that Section 252 of the act only relates to circumstances where the child is still alive.

But that argument failed in front of Judge Carmel Stewart, who said the wording in the statute was clear.

The media outlets then appealed that decision to the Court of Appeal where Judge Birmingham delivered his written judgment on 29 October.

Counsel for the media outlets had argued that “child” in the Act does not include a deceased person who died before reaching the age of 18.

The effect of the order, he said, was to protect the anonymity of the mother and not the child.

He had also stated that the media’s entitlement to report on criminal trials is an important part of the Constitutional requirement that justice be administered in public.

What did the judge say?

Birmingham ultimately found in favour of the DPP but his explanation of the decision is illuminating.

Agreeing with Judge Stewart, he said that the wording of Section 252 is clear.

The 2001 act states, “In relation to any proceedings for an offence against a child or where a child is a witness in any such proceedings — 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.”

Birmingham explained that the issue isn’t so much the definition of ‘a child’ for the purposes of the law. Rather, he said, in the case of Ms C, “what is really in issue is the phrase ‘in relation to any proceedings for an offence against a child’”.

“In my view,” he said, “it is so clear as to be almost beyond argument that the court proceedings involving Ms C were court proceedings in respect of an offence against a child.

“In my view, it is not possible to interpret this section as not including a deceased person who was a child at the time of death.”

In other words, even though he appreciated that the media may find the ruling “surprising” and may involve a “radical departure from what had been a long-established practice”, Birmingham said that the language of the statute is “is clear and unequivocal”.

The law is the law, in other words. 

What does it mean in practice?

Well, it means that in circumstances where, for example, an adult is charged with the murder of a child, the media would not be able to identify the victim.

The victims can be identified up until the DPP files charges, at which point the restrictions are triggered.

Once that happens, all mention of the victim’s name must abruptly stop.

It means as Colm Keena pointed out in The Irish Times recently, that in the trial of Ana Kriegel’s killers, “the media would have had to stop naming her once the boys who were convicted of killing her were charged”.

It also means that those restrictions would still be in place today, long after the trial has ended.

Crucially, it also means that in circumstances where naming the accused might identify the child victim, the media will not be able to name the person once they’re charged.

That would apply in a situation where, for example, a relation is charged with murdering their child.

Simply put, naming or in any way identifying the accused is forbidden if that detail can be used to identify the victim.

What are the penalties?

Any reporter who breaches the restrictions can face criminal charges that are set down in 2001 act.

A conviction in the District Court brings with it a fine of €1,905 and/or up to 12 months in prison.

If convicted in the Circuit Court, the reporter could be hit with a fine of €12,700 and/or up to three years in prison.

They can also be charged with contempt of court.

Are there any other implications?

The judgment also seems to call into question whether the grown-up victims of childhood sexual abuse will be able to easily lift reporting restrictions, allowing themselves to be identified even after their abuser is convicted.

Barrister Allan Crann explains that waiving one’s right to anonymity was previously a sort of informal procedure.

Out of courtesy to the court more than anything else, the victim would inform the judge that they plan to waive the restrictions before going public with their statement and informing the media of that.

Under the new, stricter application of Section 252, the victim will probably be required to formally apply to the court to waive the reporting restrictions.

What the broader reading of Section 252 seems to do is put a formal procedural roadblock to that in place.

Crann explains that the 2001 Act does allow the victim to apply for an order lifting the restrictions.

“What they need to do is to go back into court and prove that it is in the interests of the child. If the court then rules in their favour, the judge would have to explain in open court why it is appropriate to do so,” he said.

“But the problem is that the victim has to go back and explain why they want to have this done.”

Have there been any examples?

Yes, just last week in a case involving convicted rapist Declan Hannon.

Last year, Hannon (50), of Ramsgate Village, Gorey, Co Wexford, was jailed for seven years for raping a nine-year-old child during a game of ‘hide and seek’ when he was aged 17 and on three more occasions in the late 1980s.

Because of an order granted by the trial judge, reporters were unable to name him.

The victim, now an adult, had to fight a court case to remove the order.

Last week, she won that case in the Court of Appeal, which ruled that the original order “was superfluous and ought not to have been made”.

However, because of the Court of Appeal ruling on Section 252, the media is still prevented from identifying her.

This led to a situation today where the woman appeared on RTÉ Radio 1’s Today with Claire Byrne programme to tell her story but could not be referred to by her own name.

The victim — who in total, gave evidence six times in court before the offender was finally convicted and subsequently jailed — said she was very disappointed to learn she couldn’t waive her right to anonymity.

“To get to the end of the process and to have to be called ‘a victim’ — it’s a little bit degrading in my mind,” she said.

“I’m now in a position where I’m waiting for clarification from the DPP as to whether my right to anonymity can be named… I’m legally forced to hide behind my story.”

What happens now?

Judge Birmingham made clear in his judgment that the trouble lies within the language of the statute.

As such, any remedies to the situation will have to be legislative.

In early November, Senator McDowell and Fianna Fáil TD Jim O’Callaghan published a draft bill to amend the 2001 act.

According to the text of the bill, its goal is to amend the Act to ensure that it “shall not prohibit the publication or broadcasting of reports, images or pictures… whether such proceedings took place before or after the said amendment was made.”

McDowell said the amendment will clarify “that persons accused of homicide offences against children cannot hide behind the child’s privacy rights to conceal their own identity”. 

It will also, he said, protect the rights of victims of other non-fatal offences to identify themselves.

“Protecting child victims may sometimes require anonymity for the perpetrator in other serious offences such as FGM, sexual assault, serious non-fatal injury and incest cases,” McDowell said at the time.

“But in those cases, there is clearly a balancing act required between protecting the public and protecting the victim. The bill allows the public interest to be taken into account in non-fatal cases.

“I expect the Government to accept the bill and to enact it as a matter of urgency.”