Supreme Court tightens reporting restrictions in criminal cases involving child defendants

Introduction

Last month, Ms Justice Iseult O’Malley, delivering judgment on behalf of a three-judge Supreme Court, overruled a landmark Court of Appeal judgment, which permitted the identification of a child defendant in the media once they turn 18, if criminal court proceedings or appeals are still ongoing. See the previous RDJ Insight here, which discusses the, now overruled, Court of Appeal decision on this matter.

Background

Ms Justice Isobel Kennedy found in the Court of Appeal that the defendant in the proceedings, who had been found guilty of the murder of Cameron Blair, could be named following reaching the age of majority. The defendant was 17 years old at the time of the incident on Bandon Road, Cork, on 16 January 2020. A long-standing interpretation of section 93 of the Children Act, 2001 (“section 93”) was dislodged and reinterpreted following this Court of Appeal decision, such that the anonymity protection afforded to child offenders who are convicted, no longer protected these offenders as adults before appellate courts.

An order was made in the Court of Appeal to stay the naming of the defendant in the media, i.e., keep the reporting restrictions, in order to allow for a potential appeal to the Supreme Court. The defendant in this instance did bring this Supreme Court appeal.

The Appeal

It was specified by the Supreme Court that the crux of the appeal was whether a defendant who is brought before the courts as a minor, remains entitled to the protections of section 93 of the Act if they reach the age of 18 before the proceedings have concluded, to include any appeals. Lawyers for the defendant submitted that issues of fairness in exercising a right of appeal and concerns regarding the protection of children in the criminal justice system arise here.

Decision

The appeal was allowed, and it was ruled that anonymity protections should apply to a child at the commencement of criminal proceedings, throughout, and following conclusion of the proceedings. It was ruled that the prospect of losing the anonymity protection would inhibit a person’s right to appeal.

Ms Justice O’Malley said that to interpret the section 93 anonymity protection as expired if the offender is still before the courts when they reach the age of 18, would be “capable of creating an unjustifiable difference in the treatment of young persons engaged in the court process and has the potential to inhibit their rights of defence and appeal to an unnecessary and possibly damaging effect.”

Further, the Supreme Court judge held that by interpretating that the section 93 anonymity protection applied throughout and beyond the conclusion of proceedings seemed to her “to reduce the possibility of unequal and unfair treatment as between young offenders and attempts to ensure that they are not subjected to additional, unjustified and unnecessary pressure and harm while involved in the criminal justice process.”

In arriving at this finding, the Judge noted that the Act placed particular emphasis on the rehabilitation of persons who commit crimes during childhood and that an objective of the legislation was to promote reintegration of child offenders into society.

The five-judge Supreme Court agreed unanimously with Ms Justice O’Malley’s judgment and a declaration stating the anonymity protections shall apply to the defendant before all courts was granted.

Conclusion

Following this Supreme Court decision, child defendants in criminal proceedings will continue to enjoy the life-long anonymity protections afforded by section 93 of the Act, throughout and following proceedings, regardless of whether they have “aged out” following a conviction, but before the conclusion of an appeal. The mainstream media, and indeed more casual users of social media, will need to be aware of this judicial shift in position that children charged with crimes and who age out during proceedings are no longer “fair game” to be named, unless the Court makes an order dispending with the anonymity protection afforded by section 93. It should be borne in mind that after the Ana Kriegel murder case a number of criminal prosecutions were brought against social media users who identified the boys convicted of her murder.