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Appeal court rules against public naming of deceased child.

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    #32
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    The current rule is that a child victim can't be named without a court order giving permission, and that the court can only give permission if it it's in the interests of the child. Since a deceased child can't have any interests, or since the interests of a deceased child can't be identified, the court can't give permission. Yeah, I think it's fair to say that this is an unintended consequence, arising from the fact that nobody thought of deceased children when the Act was being prepared.

    But we need to think about what change should be made. It would be simple to say that the law doesn't apply to a child who has died, but that might be too crude. Suppose a child who is the victim of a crime has died, but the death is unrelated to the crime. Now the media can identify the child and write what they like; this might cause considerable distress to the child's family. Or, suppose that a child is a victim of murder or manslaughter in circumstances where they child was engaged in sex work, or committing a burglary, or joyriding, or whatever. Again, you can see considerable distress to the family resulting if there is no protection at all.

    So maybe the change should be one in which court permission is still required, but where the child is deceased the court must consider the interests, not of the child, but of the child's family. But, of course, where the offender is a member of the child's family - which, in child death cases, will often be so - then it's not in the interests of the child's family to identify the child, since that will also identify the offender.

    In short, there's a wide variety of possible situations here, and a short one-size-fits-all rule about naming deceased children is not likely to be satisfactory. It's easy to say that the present law is satisfactory; it's a bigger job to work out what a satisfactory law would say. What set of principles should be applied to protect the dignity of a deceased child, and the feelings of the surviving family?

    The question of how long it takes to amend the law doesn't arise until you have worked out what amendment should be made. I think that will require consultation with various stakeholders who have views or experience to offer, plus a bit of time for reflection.

    But I would expect the change to be retrospective - as in, whatever principles are eventually adopted, it will be possible to apply to court for permission, in light of those principles, to name a child who died before the law was amended.


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    #33
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    Peregrinus wrote: »
    Because that's not what the Act says. The courts arent' legislators. Unless the Act is unconstitutional they must give effect to it, and if we don't like the effect of the Act the proper thing to do is to have the Act amended - a matter for the legislature, not the courts.

    Neither does the Act say that the anonymity applies if a parent who caused the child's death is found guilty of murder or manslaughter and the other parent wants the names of the victim and the perpetrator published.

    The separation of powers doesn't prevent the courts from interpreting legislation in the way the Oireachtas intended it to apply.


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    #34
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    Nokia6230i wrote: »
    Fair to say this was/is an anomaly in the act & the only reason it was noticed is this is 1st time it's been challenged and/or the 1st time the DPP've issued such a reason not to disclose the anonymity of defendant in such a case, innocent or guilty or NG by reason of insanity etc.

    DPP invoked their power under the act & all of a sudden this anomaly is noticed; will be intereested to see when the legislation is altered if it's retrospective to take in this case.

    Given the length of time such things take to go through the Oir. this is likely to be an issue til when, Autumn 2021 maybe?

    Given what Helen McEntee said recently about proposed reform to the justice system, I think the legislation will be passed long before that.


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    #35
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    stockshares wrote: »

    In the meantime an attempt to use the new ruling has already been tried and not for the better.

    Defending Barrister SC Patrick Gageby has tried to use this law as a means of not identifying his client who is accused of the rape of two children.
    https://twitter.com/courtsnewsIRL/status/1321862631293128705?s=19

    It's not necessarily the case that the CoA's judgement means that the judge in the rape case has to rule in favour of Gageby's client.


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    #36
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    political analyst wrote: »
    Neither does the Act say that the anonymity applies if a parent who caused the child's death is found guilty of murder or manslaughter and the other parent wants the names of the victim and the perpetrator published.

    The separation of powers doesn't prevent the courts from interpreting legislation in the way the Oireachtas intended it to apply.
    But they can only deduce the intention of the Oireachtas from the words of the legislation. And none of the four judges who have considered the Act so far have found any words in it to suggest that the Oireachtas intended an exception in the case that you mention.


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    #37
    stockshares
    Registered Users Posts: 2,757 ✭✭✭stockshares


    political analyst wrote: »
    It's not necessarily the case that the CoA's judgement means that the judge in the rape case has to rule in favour of Gageby's client.

    I know, I just drew attention to the fact that the new ruling had already been used in a case.

    I haven't heard anything about the progression of this case so I don't know whether it's been effective or not.

    Could any amendments made to the new ruling be applied to decisions made by the Court in the meantime?


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    #38
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    stockshares wrote: »
    I know, I just drew attention to the fact that the new ruling had already been used in a case.

    I haven't heard anything about the progression of this case so I don't know whether it's been effective or not.

    Could any amendments made to the new ruling be applied to decisions made by the Court in the meantime?
    Depends. Unless this gets appealed to the Supreme Court and the appeal is successful - two very big "ifs" - the way this gets changed is by legislation. And policy choices have to be made about exactly what changes to make. One of the policy choices to be made is about whether the changed rules will apply only to the child victims of future crimes, or whether they will apply to the child victims of crimes that have already happened.


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    #39
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    stockshares wrote: »
    I know, I just drew attention to the fact that the new ruling had already been used in a case.

    I haven't heard anything about the progression of this case so I don't know whether it's been effective or not.

    Could any amendments made to the new ruling be applied to decisions made by the Court in the meantime?

    https://www.rte.ie/news/courts/2020/1111/1177518-courts-naming-victims/
    A High Court judge has said his interpretation of reporting restrictions in relation to child victims of crime differs from a recent Court of Appeal judgement.

    Speaking in the case of now adult victims of child abuse who wish to have their rapist named, Justice Tony Hunt said that his own interpretation of the law "must yield to that of the higher court".

    He was commenting on section 252 of the Children Act 2001, which provides mandatory and automatic reporting restrictions in the case of "any proceedings for an offence against a child".
    This morning, Mr Justice Hunt said while the Court of Appeal ruling means the section 252 prohibitions apply, there is still scope in that section to lift the restrictions where the court "is satisfied that it is appropriate to do so in the interests of the child".

    He accordingly made an order lifting all reporting restrictions in the case, saying he considers this was "in the public interest".

    But he placed a 28-day stay on his order pending an application to the Court of Appeal by the defendant.

    Mr Justice Hunt said that, having reviewed the testimony of the victims and their repeated assertions that they wish to be identified, he was satisfied that he should lift these prohibitions.


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    #40
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    Peregrinus wrote: »
    The current rule is that a child victim can't be named without a court order giving permission, and that the court can only give permission if it it's in the interests of the child. Since a deceased child can't have any interests, or since the interests of a deceased child can't be identified, the court can't give permission. Yeah, I think it's fair to say that this is an unintended consequence, arising from the fact that nobody thought of deceased children when the Act was being prepared.

    But we need to think about what change should be made. It would be simple to say that the law doesn't apply to a child who has died, but that might be too crude. Suppose a child who is the victim of a crime has died, but the death is unrelated to the crime. Now the media can identify the child and write what they like; this might cause considerable distress to the child's family. Or, suppose that a child is a victim of murder or manslaughter in circumstances where they child was engaged in sex work, or committing a burglary, or joyriding, or whatever. Again, you can see considerable distress to the family resulting if there is no protection at all.

    So maybe the change should be one in which court permission is still required, but where the child is deceased the court must consider the interests, not of the child, but of the child's family. But, of course, where the offender is a member of the child's family - which, in child death cases, will often be so - then it's not in the interests of the child's family to identify the child, since that will also identify the offender.

    In short, there's a wide variety of possible situations here, and a short one-size-fits-all rule about naming deceased children is not likely to be satisfactory. It's easy to say that the present law is satisfactory; it's a bigger job to work out what a satisfactory law would say. What set of principles should be applied to protect the dignity of a deceased child, and the feelings of the surviving family?

    The question of how long it takes to amend the law doesn't arise until you have worked out what amendment should be made. I think that will require consultation with various stakeholders who have views or experience to offer, plus a bit of time for reflection.

    But I would expect the change to be retrospective - as in, whatever principles are eventually adopted, it will be possible to apply to court for permission, in light of those principles, to name a child who died before the law was amended.

    I find it hard to believe that the people responsible for drafting the legislation never heard of the murders of children.

    Why doesn't the government just have the legislation put forward by Jim O'Callaghan rushed through the Oireachtas? Is there a constitutional requirement that legislation has to be examined by Oireachtas committees before it is passed?


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    #41
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    political analyst wrote: »
    I find it hard to believe that the people responsible for drafting the legislation never heard of the murders of children.

    Why doesn't the government just have the legislation put forward by Jim O'Callaghan rushed through the Oireachtas? Is there a constitutional requirement that legislation has to be examined by Oireachtas committees before it is passed?
    Never mind the constitution, there's a plain common-sense requirement that legislators should consider legislation carefully before they enact it.

    We're in the position we're in because the existing legislation wasn't fully thought through when it was enacted. And you want to solve that by passing new legislation with even less consideration than the existing legislation got. What could possibly go wrong?


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    #42
    Nokia6230i
    Registered Users Posts: 1,861 ✭✭✭Nokia6230i


    Peregrinus wrote: »
    Never mind the constitution, there's a plain common-sense requirement that legislators should consider legislation carefully before they enact it.

    We're in the position we're in because the existing legislation wasn't fully thought through when it was enacted. And you want to solve that by passing new legislation with even less consideration than the existing legislation got. What could possibly go wrong?

    How much consideration does updated legislation require in terms of this Act 252?

    This is an easy fix; I can't imagine many TDs'll have an issue with it.

    But it has to go before an Oir. Cttee. for scrutiny; more €s for the Chairperson & Cttee. members on it & it'll take into next year more than likely?

    Delays such as this're what alienates people from politicians; I can't see there being much public opposition to correcting this anomaly.

    Yes scrutinise it but how long should that take.......or is it a case of every dog has to have its.....pay?


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    #43
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    Nokia6230i wrote: »
    How much consideration does updated legislation require in terms of this Act 252?

    This is an easy fix; I can't imagine many TDs'll have an issue with it.
    There won't be much argument with the idea that the existing rule ought to be changed.

    The difficult bit is deciding what new rule should be put in its place. That does require a bit of thought, and a bit of consultation with affected stakeholder groups, and a bit of balancing of competing views and interests.


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    #44
    Victor
    Registered Users Posts: 78,245 ✭✭✭✭Victor


    political analyst wrote: »
    Why doesn't the government just have the legislation put forward by Jim O'Callaghan rushed through the Oireachtas?
    Because if things are rushed, things get missed.


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    #45
    Nokia6230i
    Registered Users Posts: 1,861 ✭✭✭Nokia6230i


    political analyst wrote: »
    https://www.rte.ie/news/courts/2020/1111/1177518-courts-naming-victims/

    What's mentioned in the article about a representation already made to Min. for Justice Helen McEntee has made that case so easily identifiable already even without any names of child/ren or parent/s.......

    I get a relation wants the ruling over-turned in whatever way but wonder if it'd been the other way round would've the identifiable details've been in the article?

    It's one way round it until the legislation is changed but the case was most unusual; in such cases it's mainly single deaths so less easily identifiable.


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    #46
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,710 Admin ✭✭✭✭✭hullaballoo


    political analyst wrote: »
    https://www.rte.ie/news/courts/2020/1111/1177518-courts-naming-victims/
    I don't expect you to know this as I presume you weren't present when the decision was made but did he lift the restrictions in the "interests of the child" or the "interests of the public"?

    It's unclear from the reports I've seen.

    One is consistent with s. 252 and one isn't.


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    #47
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    Victor wrote: »
    Because if things are rushed, things get missed.

    But, obviously, something in the Act of 2001 was missed anyway! I doubt there'd be anything as bad in O'Callaghan's legislation - he is a barrister, after all!


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    #48
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    hullaballoo wrote: »
    I don't expect you to know this as I presume you weren't present when the decision was made but did he lift the restrictions in the "interests of the child" or the "interests of the public"?

    It's unclear from the reports I've seen.

    One is consistent with s. 252 and one isn't.

    As I quoted from that report, a 28-day stay on the lifting of the anonymity is in place while the defendant appeals the trial judge's decision.


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    #49
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,710 Admin ✭✭✭✭✭hullaballoo


    political analyst wrote: »
    As I quoted from that report, a 28-day stay on the lifting of the anonymity is in place while the defendant appeals the trial judge's decision.
    I know, that's exactly the point.


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    #50
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    political analyst wrote: »
    But, obviously, something in the Act of 2001 was missed anyway! I doubt there'd be anything as bad in O'Callaghan's legislation - he is a barrister, after all!
    The Act of 2001 was also drafted by lawyers!

    But this issue here isn't technical legal drafting skills; it's policy formation. In order to draft legislation which will reliable deliver the desired outcome, you have to know what the desired outcome is. This involves more than just knowing that you don't desire the outcome of the 2001 Act.


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    #51
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    According to the Indo (14 November), a spokesperson for Helen McEntee said a letter written by a parent whose children died in an apparent murder-suicide that shocked the country had been received and Ms McEntee "sincerely appreciateds any person affected by the ruling, particularly a bereaved parent or family member, taking the time to share their perspective with her" and input from those affected by the ruling would "feed into considerations on the appropriate action to be taken in due course".

    The Department of Justice said Ms McEntee had asked her officials to study the appeal court judgement so that, subject to the final outcome of the process, she would be in a position to consider the need for legislative change.

    A spokesperson said:
    The minister is committed to finding suitable means to progress any necessary legislative changes as expeditiously as possible in order to respond to concerns that have been raised.

    In a separate case, the defence for a woman who is accused of murdering her children and who was previously named by the media made a successful application to have her identity anonymised. She is expected to plead not guilty by reason of insanity when she goes on trial next year. The trial is expected to take 3 days in front of a jury.


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    #52
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    It is possible that the Supreme Court will overturn the judgement on the grounds that it is an unjustified interference with freedom of expression.

    By the way, the appeal court judgement hasn't prevented the naming of the victim of this killing.

    https://www.rte.ie/news/2020/1116/1178462-dundrum-stabbing/


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    #53
    Nokia6230i
    Registered Users Posts: 1,861 ✭✭✭Nokia6230i


    political analyst wrote: »
    It is possible that the Supreme Court will overturn the judgement on the grounds that it is an unjustified interference with freedom of expression.

    By the way, the appeal court judgement hasn't prevented the naming of the victim of this murder.

    https://www.rte.ie/news/2020/1116/1178462-dundrum-stabbing/

    Thought of this thread when I read that case today also; great minds think alike!

    It appears the court judgment is retrospective but also selective?

    Childrens Act needs updating in general terms; 2001 was an era of no social media; traditional media are hamstrung legally whereas Group X or Page Y & unscrupulous Admins. or Mods who don't vet their comments threads mean this rule can be over-ridden; look at the mob who named/shamed (allegedly) the Athlone Double Rapist a few years ago not to mention the baying mob who named Boy A & B (in some cases identifying the wrong person but sure it's no skin off their teeth it appears) & Jamie Bulgers killers too.

    In the case of bringing the baying mobs to heel perhaps this ruling is a Godsend but it's so difficult to prosecute given how widespread these Chinese Whispers become so fast; Whackamole comes to mind.


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    #54
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    The judgement hasn't prevented the naming of the victim or of the perpetrator in the following case.

    https://www.irishexaminer.com/news/courtandcrime/arid-40084016.html


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    #55
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    RTÉ was unwilling to say the name of the woman whose sons were murdered by their father but it has named the victim and the perpetrator in this abuse case.

    https://www.rte.ie/news/courts/2020/1117/1178796-assault-cork/


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    #56
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    Nokia6230i wrote: »
    Thought of this thread when I read that case today also; great minds think alike!

    It appears the court judgment is retrospective but also selective?

    Childrens Act needs updating in general terms; 2001 was an era of no social media; traditional media are hamstrung legally whereas Group X or Page Y & unscrupulous Admins. or Mods who don't vet their comments threads mean this rule can be over-ridden; look at the mob who named/shamed (allegedly) the Athlone Double Rapist a few years ago not to mention the baying mob who named Boy A & B (in some cases identifying the wrong person but sure it's no skin off their teeth it appears) & Jamie Bulgers killers too.

    In the case of bringing the baying mobs to heel perhaps this ruling is a Godsend but it's so difficult to prosecute given how widespread these Chinese Whispers become so fast; Whackamole comes to mind.

    That's illegal anyway - people are awaiting trial for violating the anonymity order in relation Boys A and B.


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    #57
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    https://www.rte.ie/news/courts/2020/1123/1180011-court-rape-name/
    A victim of child rape has succeeded in having her rapist named, 18 months after his conviction.

    The woman, who is now an adult, had also wished to waive her right to anonymity and speak in person about her case.

    However, because of a recent ruling concerning the law on identification of child victims of crime, the media is prevented from publishing her name.

    Declan Hannon, 50, first raped the nine-year-old child during a game of hide-and-seek when he was aged 17. He raped her three more times during the summer in around 1987 or 1989.


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    #58
    stockshares
    Registered Users Posts: 2,757 ✭✭✭stockshares


    political analyst wrote: »
    The judgement hasn't prevented the naming of the victim or of the perpetrator in the following case.

    https://www.irishexaminer.com/news/courtandcrime/arid-40084016.html
    political analyst wrote: »
    RTÉ was unwilling to say the name of the woman whose sons were murdered by their father but it has named the victim and the perpetrator in this abuse case.

    https://www.rte.ie/news/courts/2020/1117/1178796-assault-cork/
    political analyst wrote: »
    https://www.rte.ie/news/courts/2020/1123/1180011-court-rape-name/

    Any idea of why the inconsistency?


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    #59
    Nokia6230i
    Registered Users Posts: 1,861 ✭✭✭Nokia6230i


    Am sure we all know of the case but now that a person has been charged their names become anonymised til further notice/bill amended > https://www.rte.ie/news/ireland/2020/1129/1181259-murder-charge/


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    #60
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    stockshares wrote: »
    Any idea of why the inconsistency?

    No.


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    #61
    political analyst
    Registered Users Posts: 4,442 ✭✭✭political analyst


    Micheál Martin has told the Irish Daily Star that the government will take swift action to have the law changed to permit the naming of murderers of children.


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