Media reporting on child homicide victims: a consultation on the issues
Background
Legislative background
There are currently some statutory restrictions on the reporting of criminal proceedings involving children under the age of 18 in Scotland. 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 (with certain exceptions for witnesses). This includes reporting via sound and TV programmes, as well as newspapers.
Section 47 does not 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 provisions apply to living persons only. The identities of deceased child victims, including images are 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.
Why is it necessary for restrictions to be UK-wide?
If restrictions 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. UK-wide enforcement for communication of information that takes place in Scotland is 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.
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 (Anonymity for child victims who have died: Scottish context & international examples).
Key themes from research
A number of themes emerged from the examination of the approach to anonymity in these jurisdictions. These included:
- Impact on bereaved families – in particular the potential for anonymity for victims that applies after death to impact negatively on the ability of the family to talk about their loved one. 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. However, anonymity for child homicide victims was seen by some 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.
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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.
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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.
A further concern highlighted was the potential negative consequences of passing legislation without proper consultation with those impacted - including people with lived experience and media representatives. 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.