Herald on Sunday, Sunday National, 2nd March 2025.
The atmosphere in the room was palpable. The video feed had just cut out. A woman, her face blurred, had just finished speaking about the loss of her child. A hard topic on any day – but this loss wasn’t down to accident, illness, or misadventure, but the actions of another human being. Sat around the table were a range of people – politicians, police officers, publishers, prosecutors, officials, academics and journalists. I was there to provide legal context. After she finished, the quiet was heavy.
She wasn’t there to talk about the justice system, or the person who so cruelly bereaved her family of its youngest member – but instead about the impact she felt media coverage of the case had had on her, and her surviving children.
She told a story of sensationalist reporting and a continuing sense of intrusion. What does it feel like to have your favourite childhood photo of your kid pass into the public domain? What does it feel like to constantly see this image, juxtaposed with the face of the person who killed them? How do you cope with feeling ambushed by these images again and again, months and years later?
She also described the difficulty of continuing your life in a community when everyone around you knows exactly what happened to your family, where the loss of your loved one might as well be branded on your forehead. I was reminded of how some people describe the impact of being diagnosed with cancer on their social identities and how other people treat them. A diagnosis shouldn’t define you – but too often, it does. Sociologists call these stigmatised identities, and they’re hard to shift.
Her concerns weren’t limited to mainstream journalism either. The public appetite for true crime podcasts and YouTube channels – with every gory detail included, every real-life blow repackaged as a ghoulish form of entertainment – continues to grow without much regard to the impact all this gratuitous detail might have on people who knew the victim as something more than a character in a compelling episode, having a cherished knowledge of their life going beyond constructing gruesome accounts of how they died and who killed them.
Her demand was that the law should step in, and that Holyrood should pass legislation making it a criminal offence for the media to identify child victims, anonymising them for all time coming or until surviving family decide they want to talk.
We already have reporting restrictions in some cases involving children. Child perpetrators can’t normally be identified in Scotland until they turn 18 or the court sets their anonymity aside. Some child victims and witnesses automatically have their identities protected. Why should a child lose their anonymity, Victim Support Scotland asks, simply because someone else takes their life? And if families want to engage with the press, the law could give them a way to waive their anonymity if and when they feel comfortable doing so.
These sound like powerful arguments and the lived experiences behind this campaign demand sober and sympathetic consideration. The Scottish Government has spent the past year considering these arguments, sifting through the evidence, hearing different perspectives and canvassing victims groups, publishers and legal professionals on these proposals.
Last week, it finally published its conclusions. The Justice Secretary confirmed that she “does not consider that legislation would be an effective way of dealing with the complexities of reporting on child homicide cases, or flexible enough to cover the diverse circumstances of cases and the people affected by them.”
She was right to do so. In the face of this raw grief and human witness, it isn’t easy to disagree with a campaign like this, particularly for democratically elected politicians. But there are powerful arguments why the policy that Victim Support Scotland has been advocating would be dangerous, unworkable and counter-productive in practice.
International evidence shows introducing reporting restrictions would be beset by difficulty, risk criminalising families who want to talk about loved ones and well-meaning members of the public. Holyrood shouldn’t legislate.
Let’s unpack why. First, the assumption underlying this proposal is that surviving family members do not want publicity. Experience shows the opposite to be true in many cases. Family reactions to being bereaved of their children by homicide are diverse, from people reluctant to engage with the media at all, to survivors wanting to publicly celebrate the life of their loved one and to memorialise the complexity of their life, achievements and passions, resisting the powerful tendency to reduce the person to their final tragedy. Sometimes attitudes to media engagement change over time, a willingness to contribute giving way to a heightened desire for privacy.
Some families pour their energy into campaigning for change, using public knowledge and sympathy for their experiences to highlight institutional failures and drive legal and policy change.
Giving relatives the chance to speak out in public without having to bear the burdens of going to court and the patronising paternalism of getting a judge’s permission to do so is an important corrective to these reductive impulses. Criminalising them for doing so would be unacceptable – and this would be the unavoidable consequence of the new restrictions this campaign demanded.
Free speech is not just the preserve of a sometimes intrusive media. It is difficult to conceive of a more fundamental infringement of anyone’s free speech rights than telling a grieving parent that it is a crime for them to publish anything about their own child without first instructing a solicitor and going to court.
Responding to the consultation, Scotland’s judges argued any waiver process would be “cumbersome, expensive and potentially traumatising”. Experience from Australia and Ireland suggests they were right to sound the alarm. In both jurisdictions, brief experiments with rules like this broke down in public controversy after surviving relatives demanded the right to go public without reference to lawyers or judges.
Let’s not be naive about families, either. Another assumption underpinning this campaign has been that you can draw a neat division between perpetrators on the one hand and a united family unit on the other. We can’t. In recent months, there has been widespread reporting on the deaths of 10-year-old Sara Sharif in Woking and six-year-old Hope Gordon in West Calder. In both cases, the perpetrator was their father.
Sadly, social data shows that the majority of child homicides are perpetrated by the deceased child’s parents. Sixty-three per cent of children who were the victims of homicide in Scotland in the past decade were killed by one of their parents. People will struggle with the idea that these killers should enjoy the benefits of reporting restrictions in order to preserve the anonymity of the person they killed – but this is another potential consequence of this policy proposal.
Beyond that, we need to recognise that family structures are also diverse and families disagree with one another. What happens if mum doesn’t want to go public, and dad does? Imagine adjudicating between those conflicting interests.
The implications for policing are also considerable. How do you run a missing person’s campaign, if it becomes a criminal offence for anyone to identify a missing child once they are found? How do you recall widespread local knowledge of a search, after the worst is discovered? The honest answer is – you can’t. The news is out.
There is no escaping it. Death is a social fact. It is recorded in National Registers of Scotland but it also registers in communities. A missing child’s loss is felt in the schools they don’t return to and the clubs and teams they disappear from. They are missed and their absence demands explanations. Precisely because of the merciful rarity of childhood mortality, curiosity and concern are understandable human reactions in any community confronting this kind of terrible situation.
People know.
And in the aftermath of such crimes, communities often experience a powerful need to come together to share their grief, to support survivors and to mark the loss they have collectively experienced. In the social media age, these impulses are likely to be articulated not only in person, but online.
Because of this, these proposals created significant risks of extending the law to cover well-meaning neighbours, relatives and friends in the wider community who know about what happened and innocently shared information about a case. I know that arresting and prosecuting Facebook aunties may not have been what this campaign set out to do – but it was one unavoidable consequence of the reforms being advocated for.
The criminal law is often a blunt tool. I wish politicians were courageous enough to recognise that more often.
Andrew Tickell 