Editorial: Futile to try to keep names secret

Opinion

Two important decisions in our courts this week illustrate compelling arguments against the all-too-common practice of name suppression. In the first Justice Rodney Hansen refused an application to suppress permanently the name of Kelvin Powell, the Waikato District police commander, who had just been found not guilty of rape. In the second former rugby league star Brent Todd outed himself as one of the two sportsmen named in the celebrity drug case.

The celebrity case, perhaps more than any other in recent times, illustrates the practical futility of trying to suppress a name in the face of overwhelming public interest. Within days, if not hours, Todd's name and those of two other sportsmen were being passed around by word of mouth and had appeared on the internet.

It would seem that where the desire to know is strong enough a court order is no more effective at keeping a name secret than a sieve at holding water. But that is not the end of it. The court documents mentioned two sports stars whereas the informal networks of rumour and gossip included at least one other who has nothing to do with the case. Thus not only did suppression fail in its original intent but it created an unforeseen injustice which is impossible to combat without disclosing those whose names are really in the police documents.

One suggestion from a leading law expert this week was to tighten the application of the rules so that no details whatsoever can be made public about those whose name is suppressed. This is a wrong-headed approach. Not just for pragmatic reasons but because it flies in the face of fundamental democratic principles. An open court system in which justice is not only done but seen to be done is, with freedom of expression, one of the essential pillars of any democracy worthy of the name.

This, then, is the big argument against name suppression and it is why Justice Hansen's refusal, on the grounds of public interest, to suppress Mr Powell's name is to be applauded.

All too often judges - especially in the lower courts - draw a veil across the identities of people appearing before them even though the Court of Appeal has made it abundantly clear that the starting point must be the importance of open judicial proceedings and the right of the media to report them fairly and accurately as surrogates of the public.

Although the bar has been set extremely high for suppression, court reports in New Zealand's press give the opposite impression. It appears that people are granted name suppression on all sorts of grounds - family reasons, business reasons, celebrity status - that, by any sensible measure, fall well short of the standard implied by the Court of Appeal's language.

One common argument is that the accused should not be named unless found guilty. On the face of it, this seems perfectly fair except that if the public are to scrutinise the workings of justice they need to know who is acquitted as well as who is convicted.

The essential problem seems to be that the Criminal Justice Act is not specific about the grounds for suppression and the Court of Appeal - while affirming that the presumption has to be for openness - has left it to the discretion of individual judges.

As a matter of pragmatism and principle it is time to reconsider the rules with a view to making the justice system more open. This is not to say that the power to suppress should be removed altogether. On the contrary there are times when it is clearly necessary - victims of sex crimes, for instance, or when evidence at one trial might prejudice another. But the exceptions should ensure that the rule is to live up to the highest standard: justice that is not only done but seen to be done.