Tomorrow a Belfast court may decide that you can never know the identity of a baby allegedly murdered by its mother. Here’s why we say that is unjust...
You might think that if a baby was killed in a suspected criminal act in Belfast you'd have the right to know who the tragic infant was and where the incident took place.
You might also believe that if a person appears in court charged with murdering that child, you should be allowed to know the name of the accused. This is, after all, standard practice in open societies.
Actually, a baby has died in Belfast and the police believe the evidence shows the child was murdered. They have charged the baby's mother with murder and she has appeared in court. However, you cannot be told the name of the baby because the media has been banned from providing any information that might identify the mother.
It is an astonishing and far-reaching judicial decision that, in my opinion if upheld, will make UK legal history — and for the wrong reasons. It will be the first effective ban on the naming of a homicide victim. It would also be the first time, as far as I can |ascertain, that a court has banned the naming of a person charged with that most serious of crimes, murder.
It is a fundamental degradation of the very principle of open justice, one of the key pillars of democracy and the rule of law.
As far as I can tell, there has never been a case in the UK where a person appearing in court accused of murder has had their identity shielded. Nor, as far as I can ascertain, has there ever been a case where a homicide victim cannot be named.
The facts of the Belfast baby case, so much as I dare state them for fear of identifying the mother and therefore breaking the law, appear to be that the child was taken to hospital in a critical condition on a date early in March.
The PSNI's Major Investigation Team began a probe and a woman was arrested. She was later detained under the Mental Health Act. The baby died in April and the mother was charged and appeared in court soon afterwards.
According to a Press report published some time after the hearing, the judge heard submissions from a defence lawyer that the woman was suicidal and that the fact of her being named in the media could increase the risk. It is understood defence lawyers argued that under Article 2 of the Human Rights Act the State therefore had a duty to prohibit reporting of her name.
The judge granted the application. The media were not given the option of opposing the ban at that time (and it appears the Public Prosecution Service did not venture an opinion on the matter). The reason the media did not have the option to oppose at that time is because, rather disturbingly, the media were not present. The facts of the matter are not clear to me, but it appears the Press was told the case would start at 3.30pm that day. It started half-an-hour earlier and concluded before any |journalists were present; I would like to hear a full explanation as to why.
The judge was later made aware that the Belfast Telegraph would like to challenge the ban and invited submissions from both sides for last Wednesday. She is expected to rule tomorrow.
I believe this is a critically important case. Open justice has been under pressure in Northern Ireland in recent months. Alleged drug dealers in Derry have been granted anonymity because a local judge believes reporting of their cases can place them at risk from dissident republicans.
A whole raft of anonymity orders has been placed on people accused of vile sex crimes. Thankfully, the Lord Chief Justice recently took action to rescind some of these, but it is an incomplete step.
The most serious case was ‘ZY v Higgins', heard in Belfast late last year. ZY was a defendant convicted of child sex offences, Higgins is a court reporter. ZY's lawyers successfully argued he would commit suicide if his name ever appeared in the Press.
As far as I can ascertain, ZY v Higgins was the first case in the UK in which the Press were banned from publishing the name of a convicted adult defendant. We warned at the time that it would open the floodgates, and I remain of that belief.
Who wants to see their name in print when they appear in court? No one, of course. I wouldn't, you wouldn't. But it's necessary because of the demands of fair justice and because publicity plays a key role in the detection and deterrence of crime. It can also help clear the innocent.
There are other worrying aspects — what does, for example, ZY v Higgins and the Belfast baby case say about the fine public servants of the Prison and National Health Services? That they can't protect and look after a troubled inmate?
Then there's the Human Rights Act itself. I do feel for judges who have to balance its eternally competing rights, which spring from the 1950 European Convention of Human Rights, which was designed post-war to protect citizens from tyranny, but which is now being used and abused and should be replaced.
Where will the boundaries of Article 2/Right to Life finish? It surely won't end here. Could, conceivably, a defendant claim he or she is at increased suicide risk because of a barrister's withering cross-examination?
Have we in NI really arrived at a state of affairs where the name of a slain baby has to stay a secret? I sincerely hope not, because if we have, then I fear for the future direction of our criminal justice system and your right to know what goes on in our courts.