Media reporting on child homicide victims: consultation

What next? Key considerations

What are the options?

This section of the consultation explores options for reducing the trauma that media reporting has on bereaved families, particularly children within the family, taking into account the range of issues discussed in the preceding section and how those issues may impact on the viability and effectiveness of the options available.

Given the complexity of the issues, the range of areas that any reforms may impact on and the cultural and societal change that may be required, it is unlikely that there is one simple solution. Rather it may be that a combination of approaches is required.

The options considered in this section should not be viewed as an exhaustive list and the Scottish Government welcomes any input in this respect, in order to find an approach that reduces the trauma that media reporting has on bereaved families in the most horrific circumstances, whilst maintaining the principle of open justice and the right to freedom of expression.

Non-legislative options

Work is already underway to galvanise a fundamental change in culture in the criminal justice system in Scotland to improve the experiences of victims and survivors, as well as accused persons. This is reflected in the Vision for Justice in Scotland.

The Scottish Government has been considering ways in which it could extend this work beyond the justice system, recognising that the impact of crime on victims and survivors also goes far beyond their experience of the justice system. One such avenue is through engagement with media organisations on how such events are covered and the impact this has on victims, survivors, and bereaved families.

An example of such an approach is the Reporting of Substance Media Toolkit developed by Scottish Families Affected by Alcohol and Drugs and Adfam. The toolkit aims to help journalists and editors report on alcohol and drugs with dignity and respect. Anecdotal evidence from the sector is that, whilst the change has been slow, there has been a significant improvement in reporting over the past 20 years in relation to drug use and addiction.

There are also some relevant tools available at present including a Victim Support Scotland communication guide for those within the criminal justice sector and a Zero Tolerance media toolkit for journalists and broadcasters reporting on violence against women and girls. There is also the Editors’ Code of Practice monitored and enforced by the Independent Press Standards Organisation (IPSO).

The Scottish Government is committed to working with victim support organisations, media organisations and criminal justice partners to develop a media toolkit to support journalists, editors and broadcasters to ensure reporting involving victims and bereaved families is done so in a compassionate and trauma-informed manner. Input from people with lived experience will be essential to shaping this work.

There are, of course, limitations to such an approach; some media outlets will be more receptive than others and it may be difficult to reach those publishing content outwith mainstream media. However, the Scottish Government views such a project as a useful tool in starting a wider conversation around media coverage and provoking self-reflection amongst publishers, including those outwith traditional news media and those who consume their output.

The idea of a media toolkit was also welcomed by people with lived experience, with a view that it could be a worthwhile resource if guidelines were sufficiently stringent and adhered to. Bereaved families also provided initial thoughts on what respectful reporting looks like, highlighting the need for:

• empathy
• dignity for the family and deceased
• factual reporting
• limited detail – only necessary information.

Question 7: To what extent do you agree that a media toolkit could support journalists and editors to report on child homicides in a trauma-informed way?

• Strongly agree
• Agree
• Neither agree or disagree
• Disagree
• Strongly disagree

Please give reasons for your answer.

Question 8: What should such a toolkit cover?

Question 9: Are there other non-legislative means of improving how child homicides are reported and information published?

We will also explore with the criminal justice agencies, such as Police Scotland, if there are any non-legislative measures they can take to further help reduce the trauma of media reporting on bereaved families. These organisations often act as a contact point for, and official source of information to, the media - ensuring that the information released is credible and saving bereaved families from having to deal with requests from multiple media outlets (where those families do not wish to engage directly with the media).

Such measures could include further discussions with family members about the type and level of information that is to be released and, in the rare case of a suspected child homicide, only releasing information that is strictly necessary (at an early stage) for the progress of the criminal investigation and/or to address concerns within the community.

Question 10: To what extent do you agree that the Scottish Government should work with the criminal justice agencies to explore non-legislative options to help reduce the trauma of reporting on bereaved families of child homicide victims?

• Strongly agree
• Agree
• Neither agree or disagree
• Disagree
• Strongly disagree

Please give reasons for your answer.

Legislative options

At the roundtable on this topic, four options in relation to legislation on anonymity for deceased child victims were proposed. This section will look at each of these options in turn with regard to the issues set out in the preceding section and some additional factors, namely waiver and enforcement of restrictions.

The options discussed at the roundtable were as follows:

1. maintaining the current position (i.e. anonymity does not apply to deceased child victims)

2. automatic anonymity for deceased child victims, with no option to waive

3. automatic anonymity for deceased child victims, with an option to apply to court for a waiver

4. no automatic anonymity for deceased child victims, but an option to apply to court for an anonymity order

Option 1: Maintaining the current position (i.e. anonymity does not apply to deceased child victims)

This option reflects the current practice in Scotland, and in other jurisdictions such as England and Wales. It is also reflects that there may be existing tools available that can be sought on a case-by-case basis, such as contempt of court orders, albeit these are not widely used in the circumstances explored in this consultation.

This option on its own would not offer any additional protections to the privacy of bereaved families. Therefore if trauma was to be reduced it would require non-legislative tools to be developed, and a wider discussion to be had, to drive cultural and societal change in the way in which homicides are reported on and the nature of content made and shared by the wider public. Some contributors to the discussion have suggested that a non-legislative approach is not sufficient to drive such a significant change.

It also does not provide bereaved families with a choice as to what information is shared about their loved one – though empowering such a choice could be a focus of guidance developed as part of a media toolkit.

This option has the benefit of being easily understood by those publishing information, whether in a professional or personal capacity. It upholds the right to freedom of expression, the principle of open justice and does not risk criminalising people who wish to talk about the deceased child, whether they are family, friends or from the wider community.

Option 2: Automatic anonymity for deceased child victims, with no option to waive

This option would be a significant departure from current practice in Scotland. It may present similar challenges to circumstances in Ireland, following a strict interpretation of existing reporting restrictions by their Court of Appeal in October 2020. The ruling found that their relevant law had a much broader application than previously understood - determining that reporting restrictions also applied in circumstances where the child was deceased or had turned 18, whereas previously they had been understood to expire upon death.

Following the judgment, a Bill to amend the legislation was introduced to the Seanad Éireann and was signed into law in April 2021. During the Bill’s passage through the Oireachtas, Senators highlighted the negative impact the judgment had had on bereaved families and why the Bill was required to rectify the situation:

“The mother of an 11-year-old boy who had been murdered was compelled recently to disguise her identity on television as though she was some type of criminal who could not be identified on the news. By revealing her identity, the identity of her dead child would also have been revealed. It is manifestly unfair to the families of deceased children that the law operates as it does.” [Senator Fiona O'Loughlin, Seanad Éireann debate - Monday, 15 Feb 2021]

This example demonstrates the trauma that can manifest where there is no option for bereaved families to waive the anonymity of their deceased child. Such an option would be in direct contradiction of the ask from bereaved families, that they have a choice as to what information is shared – a unilateral restriction would not offer such choice.

It is questionable whether such an approach would be compatible with the right to freedom of expression, given the need for proportionality in relation to infringements, and with the principle of open justice. As discussed in the section on ‘open justice’ (pages 15 and 16), this is particularly relevant where the perpetrator is a relative of the child, so would benefit from the restriction designed to protect the victim’s identity.

This option may also pose barriers to police investigations, limiting the information that the police can share with the public and therefore the opportunity to appeal for information, encourage witnesses to come forward and address any community concerns.

There are also implications where there are multiple victims in, for example, a school setting. An automatic anonymity restriction would prevent public identification of the school and make reporting on such an incident extremely challenging – thus impacting on the ability to keep the local community informed.

This option could reduce the trauma felt by bereaved families as they would not need to worry about their child being publicly identified or about having to go through a court process to ensure their anonymity. However, it would equally take away any choice from the family regarding whether they can speak publicly about the circumstances of their child’s death.

Another benefit of this option is that a blanket ban is easier to communicate to, and be understood by, the wider public. However, the extent of such a restriction brings with it an increased risk of criminalising people who may have a legitimate and well-intentioned reason for talking about the circumstances of the victim’s death, not least the bereaved families themselves.

Option 3: Automatic anonymity for deceased child victims, with an option to apply to court for a waiver

Option 3 is similar to the position previously in the state of Victoria, Australia in relation to victims of sexual offences who had died. Victorian legislation was amended in 2020 to make specific provision about the anonymity of deceased victims of sexual crime to extend beyond their natural life. Under those provisions, anyone with a sufficient interest (apart from the person accused of the sexual offence) had to apply to the court for permission to publish identifying information about a victim.

There was a backlash to the amendments from bereaved families who viewed the change in law as effectively a gagging order. The sister of a murder victim was quoted in contemporary news reports as saying:

"[Families] won't be able to call for justice, they won't be able to comment or express outrage at weak sentencing, they won't be able to speak out when the rapist-murderer makes appeals… And they won't even be able to publicly oppose parole applications. So the victim family member is absolutely gagged."

As a result of opposition to the changes, further amendments were made to the legislation, to make it clear that the prohibition on publishing identifying details of a victim of a sexual offence ends on the victim’s death. Legislation also provided a pathway for those close to a deceased victim to seek protection of their loved one’s identity, in certain circumstances, by introducing a victim privacy order scheme.

One of the main issues bereaved families had with the original change in law in Victoria was that it would require them to go to court to seek permission to lawfully talk publicly about the circumstances of their relative’s death. The emotional and financial toll of such a process on grieving individuals was raised as a key concern.

Automatic anonymity with the option for certain individuals to apply to court to waive the order has the same implications as Option 2 in terms of being a potential barrier to the police investigation, and a challenge to freedom of expression and open justice. Similarly, it would prevent the identification of perpetrators where they were a parent of the victim, due to the risk of jigsaw identification.

There are significant questions in terms of how a waiver process would operate, particularly where families are not in agreement about whether their deceased child’s anonymity should be waived. These challenges are discussed in detail in the following section on ‘waivers’ (pages 28 and 29).

As with Option 2, there would be implications where there are multiple victims in, for example, a school setting. An automatic anonymity restriction would prevent public identification of the school and make reporting on such an incident extremely challenging – thus impacting on the ability to keep the local community informed. It would be further complicated in terms of how a waiver would work should some parents wish to identify their child has having died in an incident when others wished to keep their child anonymous.

Some bereaved families have indicated that this would be their preferred option, in that they view it as giving them some control over what, if any, information is released. However, if such a process were by application to the court, it would ultimately be for a court to determine, balancing the various rights engaged.

This option may also present a challenge in terms of enforcement and potentially criminalising those who do not understand how the waiver process operates or when information can or cannot be lawfully published or shared, particularly members of the public who do not have access to a team of lawyers to check such information.

Option 4: No automatic anonymity for deceased child victims, but an option to apply to court for an anonymity order

Option 4 is similar to the current position in the state of Victoria, Australia, in relation to deceased victims of sexual offences. Provision was made in 2021 to allow any person, including family and friends of a deceased victim, and the media, to publish identifying details of a deceased victim of a sexual offence without fear of committing an offence. It also provided a pathway for those close to a deceased victim to seek protection of their loved one’s identity in certain circumstances, via a victim privacy order (VPO) scheme. This involves an application to the court for an order protecting or restricting the publication of identifying details of the deceased victim. An interim order can be applied for and made in advance of a full order.

It has the benefit of offering bereaved families some choice and control over what information is shared and may prevent the ongoing media coverage, many years after a death, that some bereaved families experience.

Such an approach is not without challenge, however. Concerns have been raised by some support organisations and bereaved families that an anonymity order would need to be in place as soon as possible after a death to ensure full anonymity, but that it is not trauma-informed to require bereaved families to make such an application in the immediate aftermath of their child’s death.

There would also be issues like that associated with a waiver mechanism, but in this instance for an order protecting or restricting the publication of identifying details. For example, it would require bereaved families to go through the emotional and financial costs of a court application process. There is also the question of what should happen if families do not agree whether an anonymity order be sought. Equally, in an incident involving multiple child victims, some families may wish to seek anonymity orders prohibiting the publication of identifying information such as the child’s school, whereas other families may wish to publicly disclose this information in relation to their child.

This option has similar challenges to Options 2 and 3 in terms of freedom of expression and open justice, though is a more nuanced approach than automatic anonymity from the outset and the court would be the ultimate adjudicator as to whether an anonymity order should be granted.

This option could be challenging to communicate to the wider public where an order has been granted - particularly if there has been reporting identifying the individual prior to the order being sought - thereby increasing the risk of criminalising individuals for breaching an order.

Start point for anonymity restrictions

When considering applying any anonymity restrictions to deceased child victims, the starting point for such restrictions is an important factor. It has been suggested by some that the restrictions need to apply from the point at which the child dies, in order to prevent the child’s name being reported publicly. There are a number of challenges to this approach.

It may not be known or even suspected that criminality is involved in the death of the child – this may only become apparent once a postmortem has taken place or the circumstances of their death established. Or it may be that the child was initially a missing person and their identity widely publicised to assist in the search, only for there to be a tragic outcome with the location of the child’s body.

In both these circumstances, the child’s identity is likely to be public knowledge prior to the anonymity restrictions coming into effect. Whilst it may be possible to prevent any further identifying material being published, it will not be possible to retract all the content that has been published prior to that point.

Another option would be for the anonymity restrictions to apply from the start of criminal proceedings when there is likely to be an increased level of interest and a greater degree of detail released into the public domain. However, given the level of public interest in the death of a child, particularly in those circumstances, the child is likely to have been identified prior to criminal proceedings being commenced. This is particularly the case with social media due to the impact that a child’s death will have on a community. It is also questionable whether the wider public would understand or be aware of the point that criminal proceedings are in motion.

The international examples in the evidence paper demonstrate that there is no consistent approach to the start point for anonymity across the jurisdictions that were researched.

Question 11: If anonymity for deceased child victims was introduced, at what point do you think it should start?

a) From the point of a child’s death (when it is established that criminality is involved)

b) From the start of criminal proceedings

c) Other – please provide details

Please give reasons for your choice.

Waiver

Any model for anonymity for deceased child victims that is automatic requires provision to be made for waiving that anonymity, to allow bereaved families to speak publicly about their child without breaking the law and facing criminal sanctions. It is important, therefore, to consider how such a waiver process would work and who would be allowed to apply for a waiver.

There are a number of options for providing for a waiver, as has been legislated for in other jurisdictions (though not always successfully). Options include:

• an application to court to waive the victim’s anonymity, with the court making the final decision
• allowing for next of kin to waive the victim’s anonymity without being required to apply to court, but once anonymity is waived, any restrictions no longer apply
• allowing for next of kin to waive the victim’s anonymity without being required to apply to court, but publishers must seek permission from those next of kin before publishing any identifying information

Each of these options presents different challenges in terms of how they operate and the burden they would place on bereaved families.

In terms of a waiver system via court application, it is hard to envisage a non-traumatising process which would require families to apply to court, and argue either for or against the waiving of reporting restrictions at a time in their life when they may not have the capacity to do so; and this would almost certainly require the instruction of legal representatives. Not all bereaved families will have a unified view on whether they wish the identify of their child to be made public. One parent may wish their child’s identity to remain anonymous whilst another may wish to speak publicly about their child, whether it be to remember and celebrate their life or to raise awareness and campaign for a cause linked to their child’s death. There is also added complexity where a parent is the perpetrator.

If it is determined that the purpose of anonymity is to protect the privacy of surviving child siblings, their view, where they are of an appropriate age and maturity, would also need to be considered.

It is unclear how the court would determine whose view to place more weight on, given the arguments are likely to be highly emotive and the impact on the unsuccessful parent or family member traumatic. It is recognised that courts will have experience of dealing with acrimonious family cases.

It is also important to note that, as explored earlier in this consultation and in the evidence paper, experience from other jurisdictions was that bereaved families strongly opposed laws requiring them to apply to court to be able to identify their child as a homicide victim.

If provision was made for next of kin to waive the victim’s anonymity without going to court, consideration needs to be given as to how such a waiver would operate. For example, once the victim’s identity is waived by a next of kin, would restrictions no longer apply, and publishers be free to publish identifying information? Or would publishers then be required to seek the permission of next of kin to publish identifying information on each occasion they wish to do so? If this was the case, how would such a system operate so as not to see the next of kin having to field multiple requests from different publishers seeking to publish identifying information? This would be further complicated should next of kin have differing views on waiving anonymity. Such questions would require to be fully thought through in the development of a waiver scheme for next of kin.

Question 12 : If anonymity is automatic, how should a waiver process operate?

a) Family members must apply to court to waive anonymity

b) Family members are allowed to waive anonymity without requiring a court order and all restrictions fall when anonymity is waived

c) Family members are allowed to waive anonymity without requiring a court order but restrictions do not fall when they do so and those wishing to publish identifying information must seek permission from the family before doing so

d) Other – please provide details

Please give reasons for your choice.

Question 13: Who should be allowed to waive anonymity/apply for a waiver?

Enforcement and penalties

There was discussion at the roundtable regarding the policing and enforcement of anonymity restrictions in the short and longer term, given content could be produced any number of years after the child’s death and published across a wide variety of platforms. Concerns were raised around the implications for, and practicalities of, policing a blanket ban on identifying child victims of homicide.

Concerns were also raised about the risk of disproportionately criminalising children and young people as prevalent users of social media, with 16-to-24 year olds being the most frequent users of social networking websites and apps. Research commissioned by the Scottish Sentencing Council found that young people (under 25) are not fully developed and may not have attained full maturity. As a result, they:

• are generally less able to exercise good judgement when making decisions;
• are more vulnerable to negative influences such as peer pressure and exploitative relationships;
• may be less able to think about what could happen as a result of their actions, including the impact on any victim and others affected by those actions; and
• may take more risks.

All these factors could impact on a child or young person’s ability to understand anonymity restrictions and to comprehend the risks and consequences of sharing content that is unlawful due to such restrictions.

When creating any new criminal offences, it is essential to determine what the appropriate sanction is for that offence, who is likely to be impacted by the offence and the wider implications for society. When considering sanctions for breaching any new anonymity restrictions, it may be helpful to consider the penalties in place for breaches of similar restrictions in Scottish legislation.

The current penalty for breaching reporting restrictions under the Criminal Procedure (Scotland) Act 1995 and the Children’s Hearings (Scotland) Act 2011 is a fine not exceeding level 4 on the standard scale (£2,500). During scrutiny of the Children (Care and Justice) (Scotland) Bill, stakeholders expressed concern that the current level of penalty did not reflect the significant implications of the offence, nor serve as a deterrent to the potential gains from doing so, especially for larger scale media organisations with access to significant financial resource.

Current penalties for contempt of court, where a person is convicted for breaching a section 11 order in Scotland under the Contempt of Court Act 1981 and that order relates to a solemn case (more serious cases decided by a jury), the maximum sentence that can be imposed is two years' imprisonment and/or an unlimited fine. Where a person is convicted for breaching a section 11 order and that order relates to a summary case (decided by a judge sitting without a jury), under section 15 of the 1981 Act, the maximum sentence that can be imposed is three months' imprisonment and/or a fine not exceeding level 4 on the standard scale (£2,500). Under the proposals in the Victims, Witnesses, and Justice Reform (Scotland) Bill, the penalties for breaching the anonymity of victims of sexual and other specified offences correspond with those for contempt of court.

As discussed in earlier sections, a wide variety of people would be impacted by the creation of an offence of breaching anonymity restrictions in relation to deceased child victims. This would range from accredited journalists reporting on a child homicide, to bloggers who self-publish content, to friends and families who post messages on public-facing forums in relation to the death of their loved one – with the potential for criminal sanctions for their actions.

Question 14: What do you think are the main challenges to enforcing anonymity restrictions?

Question 15: To what extent do you think it is important that the wider public understand anonymity provisions?

Question 16: What can be done to increase public understanding of anonymity provisions?

Question 17: What group of people do you think it would be hardest to educate about anonymity provisions?

Question 18: How might this group be accessed and educated?

Question 19: What do you think would be an appropriate penalty for breaching an anonymity restriction?

Cross-border application

As noted in the background section, section 47 of the Criminal Procedure (Scotland) Act 1995, relating to anonymity restrictions for (living) child victims, witnesses and accused, extends to England, Wales and Northern Ireland (though only in relation to proceedings in a court in Scotland). This is essential to ensure the effective application of anonymity provisions given the UK-wide reach of publishers, broadcasters and news reporting.

It follows, therefore, that any extension of anonymity to child homicide victims would also be required to extend to the rest of the UK – otherwise you could end up with a situation where, for example, an English-based broadcaster could name a child homicide victim, but a Scottish-based broadcaster could not. It is likely an order under section 104 of the Scotland Act 1998 would need to be agreed with the UK Government in consequence of any Scottish legislative provisions to extend those provisions to the rest of the UK. It is hard to envisage how anonymity provisions could be fully effective without such an order, but such an order would, as UK legislation, be subject to agreement with the UK Government.

Question 20: To what extent do you agree that any extension of anonymity to deceased child victims in Scotland would need to apply to the rest of the UK to be effective?

• Strongly agree
• Agree
• Neither agree or disagree
• Disagree
• Strongly disagree

Please give reasons for your answer.