The media have been barred from naming a mother who smothered her three-year-old daughter with a pillow after a High Court judge ordered that the deceased child should not be identified.
As a consequence of the order the woman, who was today found not guilty by reason of insanity of murdering the toddler at her family home, cannot be named as to do so would identify the dead child.
Last Monday, Mr Justice Michael White agreed to make an order at the outset of the trial preventing publication of anything that might identify the deceased child following an application from prosecuting counsel Paul Murray SC.
Mr Murray said that under Section 252 of the Children Act 2001 it was an offence to publish anything that could identify a child who is an alleged victim of an offence.
The following day, a lawyer representing several media outlets - namely RTÉ, Independent News and Media, News Group Newspapers Ltd and The Irish Times - applied to the trial judge, Ms Justice Carmel Stewart, to set aside the order.
Addressing Ms Justice Stewart, Tom Murphy BL said he objected to Mr Justice White’s order on the basis that Section 252 was inappropriate to put before the court as it applied to the victim of the crime being still alive. “A reasonable reading of the provision is that it protects the anonymity of living children,” he submitted, adding that the order imposed by the court the previous day went far beyond what was required.
"Sadly, the child is no longer alive" and this provision is not appropriate to restrict the press from reporting, argued Mr Murphy.
Section 252 of the Act states that in relation to any proceedings for an offence against a child or where a child is a witness in such proceedings, no report which reveals the name, address or school of the child or includes any particulars likely to lead to his or her identification shall be published or included in a broadcast.
Mr Murphy said in balancing the various constitutional rights the court would have to see that the beneficiary of the order in these circumstances was not the child but the accused woman, and that such an order was unfairly prohibiting the media from its constitutional right to report.
In reply, Paul Murray SC said the Director of Public Prosecutions (DPP) was opposing the application and a child was “any person under the age of 18 years”. Mr Murray submitted that if the legislators had meant for the provisions to only apply to a living child, they could have provided for this but there was no basis for implying from the legislation that the child must be alive.
The publications of the details of this case was of interest to the media only and that the legislature provided the judge with the power to maintain the order, he continued.
However in response, Mr Murphy emphasised that there have been a litany of cases in the recent past involving child victims, where this kind of order had not been sought nor applied by the courts.
“The obvious case is Ana Kriegel and there was no reporting restrictions in the naming of that child in those proceedings,” he said.
No such order was sought in the naming of the child in the John Tighe case, said Mr Murphy, adding that this was a case which Mr Murray had prosecuted in 2018. Tighe was found guilty of the murder of his six-month-old son Joshua at his home in Co Mayo in 2013 and given a mandatory life sentence.
If the court accepts the DPP's argument then all media organisations have been in breach of the Children Act to date without consequence, he said.
Lifting the order was not just for the good of the media, but for their readers, the general public and it was in the interests of democratic society to have fair and accurate reports from the courts, he submitted. “The rights of the child in this case cannot outweigh the public’s right to know,” he indicated.
In summary, Mr Murphy said the act does not apply in circumstances where the victim of the crime is no longer a living child and if there is a balancing act it has to come out in favour of having matters reported fairly.
In her ruling, Ms Justice Stewart said this was not a blanket ban on reporting the case but simply a ban on any report that would lead to the identification of the child. The legislation had not sought to make a distinction, which was now sought to be made on behalf of members of the press, she said.
The murder or manslaughter of a child were top of the list of offences to which the provisions of the Act applied, said the judge.
Whilst she understood it was a balancing act, the judge said that neither the Children Act 2001 or the 2006 amended legislation made the distinction that was now being asserted and on that ground she would uphold the order and protect the anonymity of the child.
The judge said the wording of section 252 was clear and it was appropriate to continue reporting restrictions in terms of the anonymity of the child in the case.