Media reporting on child homicide victims: consultation

Key considerations when discussing anonymity

Anonymity for deceased child victims is an emotive and complex issue and has the potential to impact on a wide range of people. This section sets out some of the key themes that have arisen through desk research, discussion with stakeholders, evidence provided to parliament from a range of sources and direct and indirect engagement with people with lived experience.

In considering any policy reform in the area of anonymity for deceased child victims, it is necessary to consider a number of relevant issues to understand the context within which any changes to the current system would operate. There are a number of interconnected aspects which have relevance under the current system and would continue to have relevance in any reformed system. For example, extending anonymity to deceased child victims could impact on the ability of the police or prosecutors to use a media strategy to appeal for information, encourage witnesses to come forward and address community concerns. It could also lead to the identity of perpetrators being shielded where they are related to their victim, as they could not be identified without the risk of the victim being identified.

Exactly how these issues would be assessed in the specific context of different policy options is discussed in more detail at the relevant part of the consultation where these options are set out.

Impact of media coverage on bereaved families

The Scottish Government has heard from people with lived experience about the impact unwanted, intrusive and traumatising media coverage can have on families who have been bereaved through homicide, particularly on other children in the family.

Following a child homicide, families can be unaware of what is to come and are often shocked by the nature and duration of the media attention, which they must deal with alongside their own grief. Some bereaved families recalled having the press on their doorstep and stopping their friends and neighbours to ask them questions and a media presence around the funeral, leaving them feeling unable to leave the house. They described not being able to grieve for their child in private.

Particularly traumatising for bereaved families can be the constant juxtaposition of their loved one’s picture alongside the person responsible for their death. Any time a report appears on the perpetrator, even if unrelated to the case involving their child, it can include written and visual reference to their child’s death. Their child’s image and story can be used in even more tenuous circumstances; for example, reporting of a change in the approach to policing in the area or the occurrence of a similar incident. This can be extremely triggering for families as it cannot be anticipated and can occur years after their child’s death. It also serves to drive renewed interest on social media, with people republishing old content.

A further source of distress can be the level of detail published, for example, graphic accounts of the harm inflicted on their child and diagrams of their final movements. Families have spoken of their distress at finding out information via the press or social media before they have had the opportunity to speak to the Procurator Fiscal, and how this can impact on their grief.

Some families did not object to what they saw as factual reporting, it was other reporting – often described as ‘clickbait’ – containing unnecessary levels of detail, that was distressing.

Another source of trauma can be where there is a comment function under an online article and the nature of some of the comments that are left. It has been suggested that such a function should not be available where the original content relates to a child homicide.

Some families told of avoiding attending court proceedings related to their loved one’s death as they were aware the media would be there, and that the publication of private family matters can leave individuals feeling isolated from their community and support networks.

Parents and grandparents have described the additional challenges they face in protecting young children within the family from often horrific and explicit accounts of their loved one’s death. They feel that media coverage can dictate the timing and circumstances in which they inform their child/grandchild of what has happened, rather than having the privacy and time to do so at a pace that best meets the individual needs of the child.

Families described trying to shield children from such content but as the child grows older, they can access a plethora of content online through a simple search of their family member’s name. The impact that the availability of such information has on the surviving child’s life can be profound, from it being the talk of the school playground to the trigger of seeing a picture of their family member on the front page of a newspaper in their local shop or an internet site, months or even years after their death.

Bereaved families have expressed a desire for choice and control in relation to what information is made public.

It was also acknowledged that a child’s death can have a profound effect on the community in which they lived. This can include children who were friends or contemporaries of the victim and the wider school community. It can lead to a public outpouring of grief as people seek to comprehend what has happened so close to home.

Rights and needs of children bereaved by homicide

It is essential that the rights and needs of children bereaved by homicide are central to any consideration of this issue and examined in the context of the United Nations Convention on the Rights of the Child (UNCRC).

The UNCRC is an international treaty that sets out the fundamental human rights of all children. In January 2024, legislation that incorporates the UNCRC into law in Scotland was passed by the Scottish Parliament. The UNCRC (Incorporation) (Scotland) Act 2024, which commences on 16 July 2024, seeks to deliver a proactive culture of everyday accountability for children’s rights across public services in Scotland. It requires all Scotland’s public authorities to take proactive steps to ensure the protection of children’s rights in their decision-making and service delivery and makes it unlawful for public authorities to act incompatibly with the UNCRC requirements as set out in the Act when delivering a ‘relevant function’ as defined in section 6(2) of the Act.

At the roundtable there was discussion as to whether, and to what extent, the rights of child relatives of deceased victims are engaged, particularly Article 13 (freedom of expression) and Article 16 (right to privacy) of the UNCRC.

Discussion at the roundtable also included a call for any action on this matter to be compatible with a trauma-informed and rights-based justice framework for children. To ensure such compatibility, a collaborative approach across agencies would be required and a full exploration of links with other programmes of work.

In offering views in response to the questions in this consultation, we would particularly welcome any views specific to the UNCRC requirements where you consider they may be relevant.

Purpose of anonymity

In considering whether anonymity should be extended, it is important to consider what the purpose of anonymity would be in relation to deceased child victims and who it is intended to protect.

There is a general legal principle that an individual’s privacy and reputational rights end at the end of their natural life and are not transferable. This is reflected in other areas of law when it comes to privacy and personal data protection. In a 2022 article, Dr Andrew Tickell, a Senior Lecturer in Law at Glasgow Caledonian University who has carried out significant research on anonymity in an international context as co-founder of the Campaign for Complainer Anonymity, noted that most of the jurisdictions he had considered for his research, “… adopt the approach to privacy rights articulated by the European Court of Human Rights, conceptualising privacy rights as “eminently personal and non-transferable”.”

Dr Tickell also noted that such reporting restrictions were exceptions to the general principle of open justice in our courts and represented an infringement of free expression rights under Article 10 of the European Convention on Human Rights (ECHR) – though an infringement that was justifiable in that it was proportionate to the legitimate aim of protecting the rights of living complainers. The question arises whether reporting restrictions that extend indefinitely beyond life in the interests of surviving family members would be considered similarly proportionate. Implications for freedom of expression are discussed in more detail on pages 14 and 15 of this consultation.

During the engagement that has fed into this consultation, there has been a range of views expressed as to the purpose of anonymity and for an extension to deceased child victims. Whilst some commentators consider it is to protect the memory of the deceased child, others speak to protecting the privacy of surviving child siblings/close relatives – or being a combination of both.

With respect to protecting the privacy of surviving siblings/close relatives, this raises the question as to whether it is the age of the victim – or the age of child relatives – that is the determining factor in respect of who should be protected by any anonymity restrictions. For example, a child whose mother is murdered may be equally affected by media coverage, and the challenges posed to families in terms of a young person accessing distressing content online are the same regardless of the age of the victim. However, there are significant additional challenges to moving away from a model of anonymity that is based on age of the victim as it is unclear how publishers would know that there are child relatives of the victim and which relatives this would incorporate.

Role of reporting in criminal investigations

At the roundtable, it was noted that an effective media strategy – which can include identifying the victim – is invaluable to the police in the investigative process. It enables them to appeal for information and witnesses, which may be essential for the detection and prosecution of a perpetrator.

It also has a role in informing the community and addressing concerns they may have about the level and nature of any criminal behaviour locally. Furthermore, it can ensure that there is not an information vacuum that is then filled by rumour and speculation, particularly via social media, which can lead to inaccurate and misleading information causing alarm and tension for individuals affected and the wider community.

Police Scotland has an established process in place for liaising with families regarding the content of a media strategy, prior to information being released into the public domain. Family Liaison Officers (FLO) are specially trained officers with experience and expertise in providing support to families at challenging and traumatic times. FLOs also have a direct link with the Senior Investigating Officer, should families have questions or need additional support. Through this arrangement, Police Scotland is able to make families aware of what will be released to the media prior to doing so and allows the family to have an input, where at all possible – for example, by choosing to release a specific image of their child.

The nature of investigations may change as a case develops. What started as a missing persons case – with widespread publicity to trace an individual – may, tragically, develop into a homicide investigation. This presents a challenge in terms of the potential anonymity of a child victim, as it would not be possible to retract all identifying information and the identity of the victim will already be widely known, even if their name is not explicitly linked to the homicide investigation.

There is some precedent in this respect, where a missing person is located safe and well but the investigation develops into one of a sexual offence. Publications would have to remove content where possible and refrain from further identification of the victim in order to protect the identity of the victim (currently on a non-statutory basis, though provisions in the Victims, Witnesses, and Justice Reform (Scotland) Bill – if passed – will place this on a statutory footing).

Freedom of expression

The National Union of Journalists operates under a long-standing code of conduct. There are two specific elements of the code which are particularly relevant in discussion of anonymity.

Clause 1 of the code requires a journalist “At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed.”

Clause 6 of the code requires a journalist “Does nothing to intrude into anyone’s private life, grief or distress unless justified by overriding consideration of the public interest.”

It can be seen there is an inherent tension between these clauses. Questions of what is in the public interest and what may be of interest to the public – two distinct questions – will be asked daily amongst journalists as they work to deliver reporting on issues to the public. Exactly how to approach reporting while balancing these elements of the code depends on the specifics of the issue to be reported.

The right to freedom of expression is not absolute. There are restrictions that operate. For example, the law in Scotland prohibits threatening or abusive behaviour. A person’s freedom to express themselves is restricted in that doing so in a threatening or abusive way could lead to criminal sanction.

The reason why the criminal law provides for sanction against a person expressing themselves in a threatening or abusive way is that it is considered appropriate to limit this element of freedom of expression to reduce harm caused to others. An example of this harm could, for example, be to limit the ability of people to enjoy their own fundamental human rights.

In considering anonymity for deceased child victims of criminal acts, it is important to assess whether the harm caused as a result of communicating such information justifies a criminal sanction.

It is the case that a child sibling could be upset upon sight of reporting of the death of their brother or sister even if the reporting is undertaken in a sensitive and appropriate manner, and this may lead to re-traumatisation. It may be that it is the cumulative effect of multiple reports on the death of a deceased brother or sister over a period of time that is retraumatising, again even if each individual report is conducted in a sensitive and appropriate manner.

In deciding whether a statutory prohibition against such reporting is appropriate with a criminal sanction available for any breach, it is necessary to assess what fundamental rights of child siblings and other family members are engaged if they are exposed to harm as a result of press reporting or information being shared publicly on a deceased loved one (in particular, a deceased child); and whether the level of harm justifies an approach that either did or did not explicitly criminalise a person communicating information about deceased child victims.

Another aspect of freedom of expression relevant to the issue of anonymity for deceased child victims is that while the code of conduct for journalists regulates how journalists operate, it does not apply to the abundance of ways in which non-journalists (including members of the general public) can publish information to a potentially wide audience. The use of social media, as well as online platforms more generally, can quickly communicate information to many people through mechanisms that simply did not exist until relatively recently.

As the code of conduct does not apply beyond journalists (and noting the code of conduct does not mean names of deceased child victims are kept anonymous in any event), any reforms in this area will need to account for the distinctiveness of the ability of non-journalists to communicate material to large audiences.

Open justice

There is a long history of open justice in Scotland. This principle relates to the importance of the public’s ability to understand how the justice system works, including how it responds in dealing with people who break the law Justice must not only be done but must be seen to be done. The right to a public hearing also forms part of the right to a fair trial under Article 6 of ECHR.

Part of this principle relates to living in a free and democratic society where there is accountability both for people who break the law and those who are involved in enforcing the law. Transparency and reporting of criminal cases is seen as an important aspect to help improve public confidence in the operation of our justice system and the administration of justice, including helping people understand how offenders are dealt with; with the public knowledge of criminal proceedings acting as a deterrent to others.

Depending on the specifics of any reforms, the ability to report on criminal cases by journalists would likely be affected by creating a statutory right of anonymity for deceased child victims. While it may continue to be possible to report on certain cases in general terms, enforcing a right to anonymity would clearly limit the ability to report certain information. This may not just be restricted to the names of child victims.

Thankfully deaths of children as a result of a criminal act are rare in Scotland. However, when such horrific events do occur, evidence suggests that in approximately two-thirds of cases a parent is found responsible. According to the Homicide in Scotland 2022-23 publication, in the ten year period 2013-14 to 2022-23, there were 29 victims aged under 16, of these 18 (or 62%) were killed by a parent.

Depending on the specifics of any reform, if a deceased child victim has anonymity, it is likely anonymity for parents accused of the criminal death of their own child would also have to be provided for in law. This would be necessary to guard against what is termed ‘jigsaw identification’ of a deceased child victim.

Jigsaw identification means that while one piece of information may on its own seem innocuous, it may lead to the identification of a victim in breach of the anonymity protections when taken together with other information. Were anonymity to be given to deceased child victims, there would be a high risk of jigsaw identification of the child where the alleged perpetrator(s) are the parents, unless anonymity is also extended to the parents or, at the very least, there are limits placed on the reporting of certain aspects of the case. For example, evidence relating to the perpetrator which would reveal they are a parent of the deceased child.

This would place new limits that do not currently exist on open justice. This would require careful consideration of the justification for doing so, balancing a number of competing interests.

Social media

In considering the issues, it is important to take into account the reality of modern media and communication. The role of social media is key to understanding the nature of the significant and sustained intrusion into their lives that bereaved family members have experienced and the impact this can have on them.

It is also key in terms of considering the scope of any measures to introduce anonymity, how these would be enforced, and what consequences that may have. In considering the potential for introducing and enforcing anonymity, any new controls would need to apply in all methods of communication in order to be effective and this would include but not be limited to online methods of communication. Within online communication is social media which can present distinct challenges in terms of enforcement. For example, it is important to recognise that social media is diverse and operates across borders, and the sources of potentially distressing content can sometimes be difficult to pin down. The identity of users of online communication can often be anonymous and present a specific challenge that does not arise in situations where, for example, a printed newspaper in Scotland is published and the identity of the publisher is far easier to identify. In addition, the major internet social media platforms are headquartered overseas, and the specific legal and regulatory levers that they are subject to are reserved to Westminster. These factors limit how much direct control policy developed in Scotland can exert over the regulation of social media content.

The impact of social media on bereaved family members

Social media is the broad term used to describe the various different online services, platforms and apps which facilitate communication and the sharing of information and other content, to both created online networks and communities and to wider audiences. Over the last two decades and more, it has emerged as a substantial and enduring feature of modern media. It continues to grow and evolve as technology and societal preferences change. The social media landscape is varied, examples include: Facebook, X (formerly known as Twitter), YouTube, TikTok, Snapchat and Instagram.

The ease with which information can be published (by anyone with a smartphone and an account, which are almost always free of charge), the speed at which that can happen (information can be posted immediately and events broadcast in real time), and the reach of that publication (to potentially millions of subscribers, followers or through re-publication) has revolutionised the way in which we share and consume information.

Different demographics within the population use and experience social media differently. Unsurprisingly, as with much technological innovation, children and young people are often at the forefront of its popularity and influence. That can mean that when a child dies as a result of a crime, particularly an older child, social media can become a source of information about the child, their friends and family, that others may seek to investigate and exploit, rapidly sharing personal details and photographs of the child after their death.

Some bereaved family members have reported that the rise of social media has contributed to unprecedented levels of intrusion into their lives, intrusion that does not necessarily subside with time. They have suggested that those who post and share content on social media (including ‘citizen journalists’ and ‘true crime’ bloggers, as well as those who have a casual and gratuitous interest in the circumstances of the death of their child), pose an enduring risk to the dignity and privacy of their deceased child and to surviving family members, particularly the child’s siblings. That is not to question the motivation of all who engage in social media around issues surrounding deceased child victims: many are motivated by concern and a desire to offer support to those affected, but families have spoken of the toll of perhaps well-meaning, but nonetheless unsolicited and relentless, interest in their lives.

As prominent academics in this field have previously commented, social media with its hallmark of user-generated content, has the ability to turn us all into publishers but it does not turn us all into journalists. Those who post and share content must of course obey the law and act within the terms of service of the relevant platform or service provider, but the overwhelming majority may not appreciate the appropriateness or impact of their social media contributions or have awareness or regard to professional or ethical standards in making them.

Families have seen inaccurate, upsetting and graphic content circulated on social media about their child, the circumstances and details of their death, the investigation and subsequent proceedings. It can be very difficult to have this type of content removed from the internet. Even when measures for removal are successful, families live in the knowledge that the information may have at the very least been seen, if not saved, by countless people, risking repeat publication or disclosure in the future, or being talked about in the communities in which they live.

Social media can therefore become a dangerous place for bereaved family members given the risk of re-traumatisation should they be exposed to distressing material about the death of their loved one or should they themselves become a subject of interest to others because of their relationship to the deceased child. It can be difficult to allow other children in the family to access social media because of the fear and anguish over exposure to upsetting content and what they may learn, sometimes for the first time, about the death of their loved one. Understandably, given social media plays such a prominent role in social connection, particularly among younger generations, exclusion or even temporary respite from its various outlets can be difficult to maintain in the longer term.

However, it would be wrong to focus only on the challenges that social media brings to those bereaved through crime. For others, it provides a space for comfort and solidarity and a platform through which they can keep the memory of their loved one alive, build connections and networks with others who have experienced similar tragedies and reach out to a community united in grief (or be reached by them). Some will see social media as an opportunity to seek to influence and contribute to the legacy and the public record of the life of their loved child, a record some feel can otherwise become dominated by information surrounding their death and those that caused it.

Examples of the positive impact of social media in this regard include accessing support, raising awareness, campaigning for change and fundraising for charitable causes established or progressed in the memory of a deceased child victim.

Scope of any potential reporting restriction and risk of incidental criminalisation

Any measure that sought to effectively protect the identity of children who died through criminal acts, to ensure that victims and their families are afforded dignity, privacy and respect, would need be fully informed by the use and reach of social media and would need to be adequately future proofed to allow it to remain effective as technology develops.

Proposals within the Victims, Witnesses, and Justice Reform (Scotland) Bill – currently being considered by the Scottish Parliament – seek to introduce a statutory right to lifelong anonymity for victims of sexual and certain other offences, by introducing reporting restrictions on the publication of information likely to lead to the identification of a victim. The Bill seeks to define publication broadly, avoiding the limitations of applying reporting restrictions to only certain types of publication which can quickly become redundant as technology advances and social trends change. Section 63 of the Bill proposes the following definition:

““publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed or accessible to the public at large or any section of the public (whether on registration, payment, subscription or otherwise)”

This definition includes traditional forms of print and broadcast media, as well as social media and other publicly accessible online forms of communication.

The Bill recognises the risk of ‘jigsaw identification’, the term used to describe identification which has been made possible despite an individual not being named, because of the context and other information referenced. Section 63 of the Bill therefore prohibits publication of information that is likely to lead to the identification of a person being a victim of a prescribed offence which encompasses more than just the direct naming of an individual.

The scrutiny to date of the propos”ls in the Bill has highlighted the importance of putting in place a legislative framework that effectively incorporates social media, is clear, easily understood and proportionate. Part of being proportionate means ensuring that it does not result in unjust outcomes by incidentally criminalising conduct or where that is an unintended consequence.

Any approach to introduce a measure to provide anonymity to deceased child victims raises a similar set of considerations. In part, that reflects the proliferation of social media and how it is used by society – meaning that there are countless numbers of users who will require to comply with any reporting restrictions or risk being criminalised if they do not. The fairness of that potentially very far-reaching criminalisation requires us to consider some of the issues already discussed in this paper, that the death of a child through criminality is not only an unimaginable loss for that child’s family but is also felt beyond that family, in the community and more broadly in society.

Any approach to reporting restrictions in this area would therefore have to carefully consider the full implications of its scope and the type of conduct it sought to capture, fully addressing the risk and reality of criminalising individuals acting in good faith over social media.

Examples of behaviour within social media that would require careful consideration include:

• family members and friends posting tributes to the child and messages about their own personal grief and loss
• friends and family members posting messages of condolence and support
• friends, family and others circulating information about a funeral or memorial service
• friends, family and others circulating information about fundraising or crowd funding

The practicalities and resources required to enforce any reporting restrictions would also require significant analysis given the number of users of social media, particularly within younger generations.

Cross-jurisdictional issues relating to publication are complex and social media compounds the challenge. A post or an article can originate halfway across the world and be seen and circulated by many millions of people outwith Scotland before it is seen and its impact felt in Scotland. Whilst thankfully rare, there are a number of circumstances in which there may be cross-border or global interest over the death of a child or children in Scotland where they lost their lives through criminal acts; for example, through acts of terrorism. It would seem unsatisfactory, and unrealistic, for information relevant to the identities of those children to be lawfully disclosed and circulated within social media in other jurisdictions (including other parts of the UK), but not in Scotland.

The speed at which social media can share information also poses a risk to the effective operation of measures designed to protect anonymity – particularly where there is a window of time within which it is not known by those posting about a death of a child, that criminality was involved.

These and other issues require careful consideration and solutions may be found depending on what, if any, legislative framework is put in place to deliver anonymity. The law can of course create statutory defences where a person will not be found criminally liable for breaching anonymity provisions if certain conditions are met, or it could provide for scenarios where anonymity provisions do not apply at all. However, the greater the complexity of any framework, the less assurance it may offer.

It Is important for both the effe”Iiv’ness of the approach and the confidence that society will have in it, that any proposals for criminal law in this area are clear and easily understood, and provide relative legal certainty so that potential consequences are known and foreseeable and that the law is consistently enforced. It is also important to consider what can be achieved without recourse to legislation, through education and guidance.

Question 1: Please share any thoughts you have on how the media currently reports on child homicides.

Question 2: Please share any thoughts you have on any action that could be taken to amend the current position on media reporting of child homicides.

Question 3: To what extent do you think an extension of anonymity to deceased child victims would affect family and friends wanting to talk publicly about their loss?

Question 4: Do you consider that an extension to anonymity would have an impact on the ability of the police to investigate a crime? Please provide details.

Question 5: Do you consider that an extension to anonymity would have an impact on freedom of expression? Please provide details.

Question 6: Do you consider that an extension to anonymity would have an impact on open justice? Please provide details.