Daniel McConnell: A judgment that may not be in the public interest

Ana Kriegel’s parents Geraldine and Patrick Kriegel leaving the Criminal Courts of Justice Dublin after the Ana Kriegel Trial finished. Boy A and Boy were found guilty of Ana’s murder. A ruling in the Court of Appeal on Thursday means had that case happened now, the public would never have heard a word of it. Picture: Sam Boal/RollingNews.ie

THE country was gripped last year by the trial of two boys charged with the murder of teenager Ana Kriegel.

The daily reports from the courtroom as to the horrific end to her short life dominated the newspapers, TV bulletins, and radio shows.

The public was clearly highly engaged and interested in the unfolding events of the case and the fate of Boy A and Boy B.

While, of course, the case was a nightmarish tragedy for the families involved, the case raised profound public discussions about teenage violence, access to smart phones, and computers at a young age, bullying, as well as the appropriate sentencing for those involved.

A ruling in the Court of Appeal on Thursday means had that case happened now, we would never have heard a word of it.

How is that just?

Listeners to Today on RTÉ radio, hosted by Philip Boucher-Hayes, were confronted with an absurd situation.

The show opened with an interview with the mother of murdered children, who the presenter was not allowed name on foot of a highly controversial judgement in the Court of Appeal the previous day, despite her appearing on the programme several times before and being named. 

More importantly, her murdered children were also not allowed to be named.

As Boucher Hayes explained: “Yesterday, Justice George Birmingham handed down a decision that he recognised would be seen as surprising and a departure from current practice.

“He ruled that a dead child cannot be identified when somebody has been accused of killing them, and under the 2001 Child Act, that applies not just to the specific case that they were looking at, but all cases where a child has been killed. 

"This now leaves us in the situation that we can no longer name, not just child victims, but also the person that murdered them, and any other surviving parent for fear that that child be identified.

“So, for reaction to this situation, I’m joined by the parent of murdered children,” he said, in a very bizarre introduction.

The unnamed mother responded by saying “good morning”.

“Normally, I would name you but I’m advised legally, and please don’t think that I’m being glib in saying this, I can only refer to you as mother of murdered children during the course of this interview, but we have spoken to you on this programme before, haven’t we? And I’m also advised that we obviously can’t name the children but nor can we name the person that murdered them or, indeed, your relationship to that person. How does that leave you feeling this morning?” he asked her.

“I feel very uncomfortable. I have been interviewed quite a number of times and I have been comfortable with that. I have never had to censor myself but I have to do that this morning,” the mother said, pointedly.

The application in the Court of Appeal from various media outlets including RTÉ, The Irish Times, Irish Examiner, Independent News and Media and News Group, centred on their desire to be allowed name a woman who smothered her three-year-old child to death with a pillow. 

The woman was found not guilty of murdering her child by reason of insanity following a short trial in October last year.

As Eoin Reynolds reported, before her trial began, two High Court judges ordered the victim should not be identified and, as a consequence, the woman cannot be named as to do so would identify the child.

An application from the DPP had sought the judge to make an order saying Section 252 of the Children Act 2001 makes it an offence to publish anything that could identify a child who is an alleged victim of an offence, including a deceased child.

Ultimately, on Thursday, President of the three-judge Court of Appeal, Mr Justice George Birmingham, found that the High Court judges had acted properly in restricting the coverage.

For clarity, section 252 states that in “any proceedings for an offence against a child ... 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.”

The judgment said the media appellants argued that the definition of ‘child’ in the Children Act 2001 does not include a deceased person who died before attaining their majority.

They also argued that many previous cases involving child homicide had been reported on and no application was made by the DPP to prevent the deceased being identified.

The effect of the order, he said, was to protect the anonymity of the mother and not the child.

Mr Ó Braonáin had also stated that the media’s entitlement to report on criminal trials is an important part of the constitutional requirement that justice be administered in public.

This is a point the National Union of Journalists has too highlighted, leaning heavily on the constitutional argument.

However, Judge Birmingham said it is “almost beyond argument” that the court proceedings were in respect of an offence against a child. He said it is not possible to interpret Section 252 “as not including a deceased person who was a child at the time of death”.

In his judgment, Judge Birmingham said: “I appreciate the media may find the ruling surprising and that they may say that it involves a radical departure from what had been a long-established practice. They may say that the outcome is an undesirable one and may be in a position to make that argument with some force.

“Nonetheless, the language of the statute is clear and unequivocal and, enjoying a presumption of constitutionality as it does, must be given effect to.

“If change is required and if it is desired to return to previous practice where it was possible to report cases involving the deaths of children, then it is a matter requiring intervention by the Oireachtas.

“While the outcome may not be a particularly welcome one, I am of the view that the interpretation of the section in issue by the High Court judge was correct, and accordingly, I would dismiss the appeal,” he concluded.

While some can argue as to why the DPP decided to press the motion in the first place, what cannot be argued is that the court is unambiguous about the fact the way the law is worded, children dead or alive involved in such cases cannot be identified.

The effect of the ruling has profound implications for how we as newspapers and our readers report and learn about the goings on in our courtrooms.

Government sources met the decision with “surprise”, saying it “came out of the blue”.

Officially, the judgment will be “studied” by the Government.

Setting aside the clear public interest argument and the commercial implications for media outlets, the mother of the murdered children also gave voice to the potential impact for the victims involved.

The new status quo will in a way serve to protect the perpetrators of these wicked crimes, but also robs the victims who wish to speak out of their voice.

The mother of the murdered children has been a powerful advocate for such victims and also for her children who she wants remembered not just as victims but as fully living people.

This requires urgent attention, for all our sakes.