Children Act 2001 prevents identification of deceased child in criminal proceedings for an offence against the child

Andrew McKeown BL

About this case:

• Citation:
  [2020] IECA 292
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Background

A woman, identified only as Ms C, suffocated her three-year-old daughter. While she accepted responsibility for her daughter’s death, she pleaded not guilty to murder by reason of insanity. A jury was empanelled in October 2019 before Mr Justice Michael White, who had charge of the list in the Central Criminal Court on that date. On the application of the Director of Public Prosecutions (DPP), Mr Justice White ordered reporting restrictions preventing the identification of the deceased child. This meant, practically, that Ms C could not be identified. Counsel for a number of media outlets made an application for the lifting of those restrictions, but the judge said that Ms Justice Carmel Stewart, to whom the trial was assigned, had seisin of the proceedings and that it was appropriate any such application should be made to her.

The trial before Ms Justice Stewart began the next day. Before counsel for the DPP opened the case, counsel for the media moved an application to annul the order imposing reporting restrictions. Counsel argued the Children Act 2001 s.252 only related to circumstances where the child victim was still alive. When asked by the court where that was contained in the section, counsel replied that it wasn’t explicitly said. He argued the restrictions unfairly prohibited the Press from reporting on the case, as they were entitled to do under the Constitution.

Counsel for the DPP said that the wording of s.252 was clear. Replying, counsel for the media pointed out that there had been a number of cases where the trials were reported with the victims and accused being named.

Ms Justice Stewart declined to interfere with the order made by her brother judge and determined to continue the order.

The media outlets appealed.

Court of Appeal

The media, relying on HSE v McAnaspie (Deceased) [2012] IR 548, argued that the definition of ‘child’ in the Children Act 2001 did not include a deceased child. McAnaspie concerned a child who was the subject of a care order pursuant to the Childcare Act 1991 s.18. The child in question went missing, aged 17, and his body was subsequently discovered. Mr Justice George Birmingham, President of the Court of Appeal, said McAnaspie was of little relevance in this case because the definition of ‘child’ was not at issue, the 2001 Act providing a statutory definition. What was actually in issue was s.252’s provision for reporting restrictions “in relation to any proceedings for an offence against a child”.

When questioned by members of the Court, counsel for the media “appeared to accept” that the trial of Ms C was such a trial, but said the question posed and the concession offered did not dispose of the matter. He said that interpreting the section in the way contended for by the DPP would give rise to a number of anomalies, as there were other cases where children were victims where no such application was made. Counsel, referring to Irish Times v Ireland [1998] 1 IR 359 and Independent Newspapers (Ireland) v Anderson [2006] 3 IR 341, said the media’s entitlement to report on criminal trials is protected by the Constitution.

Counsel for the media argued that the order only served to protect the anonymity of Ms C, and that the focus of the 2001 Act is on the protection of child victims from further victimisation which, due to the nature of the case, was not a factor.

Counsel for the DPP argued that s.252 is an exception to the general constitutional rule that justice shall be administered in public and applies in circumstances where the alleged offence involved the killing of a child.

Counsel for the DPP said the media were attempting to “rewrite history” to the extent that they argued a deceased child ceases to be either a “child” for the purposes of the act or that proceedings no longer relate to “an offence against a child” in those circumstances. The Oireachtas created no such exemption. Counsel said the sole basis for lifting the restrictions was if the media could demonstrate that it was in the best child’s best interests. No such basis was provided at first instance or on appeal.

Counsel for the media argued a breach of restrictions potentially involves the commission of a criminal offence, such that the interpretation of such penal provision should be construed strictly. He said that where the child is dead, reporting restrictions would serve no useful purposes. He argued that the word ‘child’ should be interpreted as a living child.

Counsel for the DPP said that interpretation was contrived and artificial. Mr Justice Birmingham said that objection was “well-founded.” It was “so clear as to be almost beyond argument” that the proceedings were proceedings in respect of an offence against a child. It was impossible to interpret the section in a way contended for by the media, or in a way excluding proceedings relating to offences committed against a child, if they come on for hearing after the child has attained his or her majority.

Conclusion

The judge said that he appreciates that 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 judge said, “the language of the statute is clear and unequivocal and, enjoying a presumption of constitutionality as it does, must be given effect to.”

As to whether there should be an entitlement to report on cases involving a deceased child, that was a matter for the Oireachtas. While the outcome “may not be a particularly welcome one”, the court held that Ms Justice Stewart’s interpretation was correct.

The appeal was dismissed.