Media reporting on child homicide victims: consultation

Background

A victim of a criminal offence in Scotland has anonymity if they are under 18. However, legislation in Scotland providing anonymity to child victims is time-limited (until the conclusion of any criminal proceedings or until an individual turns 18, whichever is later) and does not extend beyond death.

During scrutiny of the Children (Care and Justice) (Scotland) Bill, victim support organisations – and some of the individuals they support – highlighted the traumatic effect on families of intense and continuing media coverage relating to child victims of homicide. This culminated in a campaign for the law to be changed to provide anonymity for deceased child victims, with a particular focus on protecting the privacy of children who have lost a sister or brother to homicide.

Due to the stage in the parliamentary process at which this issue was raised, there was no opportunity for in-depth scrutiny of, or wider public consultation on, what is clearly a complex area that has the potential to impact on a wide range of people. However, the Cabinet Secretary for Justice and Home Affairs and the Minister for Children, Young People and Keeping the Promise committed to considering this issue in more detail through consultation and engagement with people with lived experience, victim support organisations, media organisations and the wider public.

It is essential that the policy developed in this area is evidence-based, learns from what has been done in other jurisdictions, and listens to the voices of those with lived experience of this issue. The Scottish Government has begun developing a body of evidence to inform policy development, including an evidence paper looking at international approaches to victim anonymity, hosting a roundtable with key interests and publishing a report of the discussion, and direct and indirect engagement with bereaved families. This consultation seeks to explore some of the complexities that have emerged through this work and to enable all interested parties to contribute their views.

Legislative background

There are currently some statutory restrictions on the reporting of criminal proceedings involving children under the age of 18 in Scotland. The involvement of children may relate to being accused of an offence, being a victim of an offence or being a witness of an offence. Section 47 of the Criminal Procedure (Scotland) Act 1995 prohibits the publication of the name, address, school or any particulars calculated to lead to the identification of any person under the age of 18 who is an accused, victim or witness in criminal proceedings. This includes reporting via sound and TV programmes, as well as newspapers.

Where a person under the age of 18 years is concerned in the proceedings as a witness only, and no one against whom the proceedings are taken is under the age of 18 years, the requirements do not apply unless the court so directs.

Section 47 does not explicitly state that the provisions apply to living persons only, or that they cease to apply on the death of an individual. However, it can be inferred from the wording used in the section, that the reporting restrictions apply to “any person under the age of 18 years concerned in the proceedings” that the provisions apply to living persons only. As such, this is why the identities of deceased child victims, including images, are regularly reported.

The provisions in section 47 extend to England, Wales and Northern Ireland (though only in relation to proceedings in a court in Scotland). This reflects the UK-wide reach of publishers, broadcasters and news reporting. For example, if this did not operate in this way, then a UK-wide news broadcast at 6 pm would be able to report on the identities of children under 18 involved in a Scottish case whereas the Scottish news broadcast at 6.30 pm would not; that plainly would undermine the policy of anonymity. UK-wide enforcement for communication of information about proceedings that take place in Scotland is therefore essential in ensuring anonymity provisions operate with their intended effect in protecting the identities of under 18s in Scotland. Such UK-enforcement cannot be delivered in legislation made at the Scottish Parliament and would require legislative provision made in the UK Parliament. This would require the co-operation of the UK Government.

There is also provision for the court to make an order prohibiting reporting under sections 4(2) and 11 of the Contempt of Court Act 1981, and section 46(1) of the Children and Young Persons (Scotland) Act 1937 – though the latter is applicable to civil proceedings only.

Legislative background – England and Wales

In England and Wales, like Scotland, there is no legal right to anonymity, either automatically, or by way of application, to prohibit the publication of the identity of deceased child victims of a criminal offence. The approach to anonymity laws for living victims in England and Wales aged under 18 differs dependent on whether the case is being heard in the youth court (which is for children and young people aged 10 to 17), or in the (adult) magistrates’ court (which deals with less serious criminal cases) and Crown Court (which deals with the most serious criminal cases).

Reporting restrictions apply automatically to any child who appears in the youth court as a victim or witness in proceedings, as they are ‘concerned in proceedings,’ under section 49 of the Children and Young Persons Act 1933. The automatic restrictions under this section cease to apply on that person’s 18^th birthday, however, a court has a specific power to make a lifelong reporting restriction order under section 45A(2) of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) if certain criteria is met.

Child victims and witnesses involved in cases in the adult magistrates’ court or Crown Court are not covered by automatic reporting restrictions, and a discretionary order (under section 45 of the 1999 Act or otherwise, for example, an order under section 11 of the Contempt of Court Act 1981) would need to be sought on their behalf. Lifelong anonymity orders under section 45A of the 1999 Act can also be sought in respect of a victim or witness who is under the age of 18 at the time the criminal proceedings they are involved in commence, again if certain criteria are met.

Neither section 49 of the 1933 Act nor section 45A of the 1999 Act specifies that the restrictions apply to living persons only, or that they cease to apply on the death of an individual. However, as with the legislative position in Scotland, it can be inferred from the wording used in the section that the reporting restrictions apply to living persons only, given the reference to “any child or young person concerned in proceedings”. The identities of child homicide victims in England and Wales, including images, are regularly reported.

Experience of other jurisdictions

To inform policy development, the Scottish Government researched the approach applied by a number of different jurisdictions in relation to anonymity for child victims of a criminal act extending beyond death. This included Ireland, Northern Ireland, Australia (Victoria and New South Wales), Canada and India. The findings of this research are set out in detail in an evidence paper provided to the Education, Children and Young People Committee and the Criminal Justice Committee at the Scottish Parliament.

A number of themes emerged from the examination of the approach to anonymity in these jurisdictions. These included:

• Impact on bereaved families – The experiences from Ireland, India and Victoria, Australia all illustrated the potential for anonymity for child victims that apply after death to negatively impact on the ability of bereaved families to talk about their loved one – with some measures even being described as “gag laws”. Concerns were also raised about putting family members through the emotional and financial cost of going to court to seek an order to talk publicly about their deceased relative. In comparison, in New South Wales, anonymity for child homicide victims was seen as protecting family members from the trauma of unwanted publicity and empowering them to decide whether their child’s name was released to media – though with the potential for them having to deal with multiple media outlets wishing to publish details.
• Open justice and public interest – Concerns were raised in some jurisdictions about the impact of restrictions on open justice and the potential for offenders to use the child’s privacy rights to conceal their own identity, specifically where the perpetrator was related to the victim.
• Lack of international consensus on model – The research highlighted the range of different approaches taken to anonymity across jurisdictions and the challenges of the operation of the differing models in practice, even within the small sample examined. Some apply anonymity automatically and in perpetuity, others restrict it to the lifetime of the person concerned or another specified period, some allow for family members of homicide victims to waive anonymity whilst others require them to go through a court process to do so.

Reflecting the complexities of this area as summarised above, a further concern related to how policy might be developed:

• Risks of introducing new laws without full consultation – The potential negative consequences of passing legislation without proper consultation with those impacted – including people with lived experience and media representatives – was highlighted. In several areas, the legislation was subsequently reformed to ensure families of deceased victims were able to speak publicly about their loved ones without risking breaking the law or having to apply to court for an order to do so.