Media: The Dunblanes that will never be reported

In its desire to protect young people, is the Government being unwisely prohibitive?

IN THE week that the Government finally gave us a Freedom of Information Bill, it may seem perverse to make an argument about Clause 43 of the Youth Justice and Criminal Evidence Bill. But the way that ministers deal with Clause 43 will tell us much about their clarity of vision on freedom of information.

The Youth Justice Bill, which reaches its committee stage on 6 June, aims to make the judicial system work better for people under 18 and contains sensible provisions, eg tightening up the rules that govern the taking of evidence from children who have been sexually abused.

In its original form, the purpose of Clause 43 of the Bill was alarmingly clear. In future, in England and Wales, no news organisation would be able to identify, or contribute towards the identification of, anyone under the age of 18 who had been involved in an alleged crime, whether as perpetrator, witness or victim, before that crime came to court.

The crucial issue here is not the one involving young offenders - we already have clear rules about them. But until now no one has thought it sensible to prevent newspapers from naming people who witness or suffer from criminal acts.

Clause 43 means that if a group of children is cut down at a bus stop by a drunken driver, the local newspaper will not be able to name them. Were Dunblane or Columbine High School to occur in Redditch or Exeter, we should have no names, no photographs, no eye-witness accounts from the victims. The Government's argument is that the public's interest may cause further distress to the young people involved, but what about the media's duty to report events in a way that captures their drama and pathos, not to mention a young person's right to speak publicly? Imagine the reporting of Dunblane without the photograph of the smitten school class.

For certain, journalists should be sensitive in dealing with children. But the freedom to report facts is fundamental to the workings of liberal democracy. It may not be an untrammelled right, as those behind the many caveats of the Freedom of Information Bill will argue, but it is a right that can only be properly restricted upon the highest definition of public interest. Yet when it comes to identifying child victims of criminal activity, it is clear that there is often an outstanding public interest in revealing identity - think only of the recent case of the abducted schoolboy found, following extensive publicity, on Hastings sea front.

Of course, say the Bill's authors, the police would have the authority to override the secrecy proposed in Clause 43. And this is the nub of the problem: who is to decide when exemptions from Clause 43 are legitimate? The courts are too slow and the police can't be trusted to act outside their institutional self-interest.

That is why restrictions in any area of reporting should be entertained only where there is both a high public interest and exemptions are workable - and overseen by a properly accountable body.

Clause 43 meets none of these tests. The public interest involved is at best questionable and the scope for exemptions hazy, cumbersome and likely to deter only the most law-abiding of media organisations.

It is, however, to the scope for increasingly complex exemptions that the Government has turned its mind as Clause 43 has come under fire during the Bill's passage through the House of Lords. Essentially, two loopholes are proposed: first that journalists will be able to name names upon receipt of formal permission from parents or guardians; second that where a news organisation decides to ignore the rules and is prosecuted, a public interest defence will be available.

Given the speed of news, the first of these loopholes is simply not feasible. The idea of a retrospective public interest defence is calculated to sway journalistic opinion, but this is not here an appropriate comfort because, for local newspapers, the business of reporting the names of young victims and witnesses is a routine matter. Imagine that the climbing- frame in your local park is burnt down by vandals. There could be no photograph in the paper of the children affected, still less the voices of youngsters explaining that the park has become dangerous since the council withdrew its park keeper. If reporters and photographers felt that they must track down a dozen sets of parents before proceeding, they would simply ignore or underplay the story.

For journalists, this then is a material issue of freedom of speech, which will if necessary be tested by challenging the eventual Act's effect under the terms of the European Convention of Human Rights, as embodied in the Government's own Human Rights Act. Is that what the Government really wants?

There is another point, too. The assumption behind Clause 43 is that children up to the age of 17 years and 364 days have no right to speak without their parents' permission and that news organisations must treat them as a forbidden zone until instructed otherwise by a senior police officer. Is this really the Government's vision of how the young are to be nurtured in citizenship?

The nasty suspicion is that the Home Secretary, Jack Straw, lost his sense of priority on this issue in the wake of the Daily Mirror's entrapment of his son over drugs. To me, it looks more like a Government wearing its thick-lens family values spectacles and filtering out other, equally important considerations.

With freedom of information at the centre of the legislative stage, ministers should adjust their vision at once and drop Clause 43.

The writer is professor of journalism at Cardiff University