Name suppression: silence in court

Name suppression runs counter to the idea of open justice - but the issue is not always clear-cut. Photo / Herald on Sunday

The actions of a blogger in defying name suppression orders has drawn attention to an issue that has been long under review.

The Law Commission - a publicly-funded body which reviews the law - filed its recommendations in October: these included that grounds for suppression need to be clarified and tightened. It found suppression was granted inconsistently and sometimes too readily.

Justice Minister Simon Power seems to agree and has said the Government will act to make standards tougher and clearer. He's hinted that temporary suppression orders need to be harder to get.

Last week police said they would investigate blogger Cameron Slater for possibly breaching the name suppression of a former MP accused of sex offences. Slater already faces charges alleging he breached name suppression in sex crime cases involving an entertainer and an Olympian.

We canvas the arguments.

Every accused person should get name suppression until convicted.

YES: It would ensure no stigma attaches unless the allegation is proven beyond reasonable doubt. It would also protect the judicial process by ensuring a jury is untainted by media content.

NO: Suppression orders overturn two important principles of democracy: open justice and free speech.

Higher courts have held that juries are capable of putting aside what they have heard and trying a case purely on the information put before the court. They are cautioned to do just that by judges before beginning to consider a verdict. Publicity usually occurs around the time charges are laid and cannot be held to prejudice cases generally heard many months or a year or more later.

This was the view of High Court judges Tony Randerson and Warwick Gendall in dismissing a case in October 2008 that news group Fairfax allegedly had prejudiced a fair trial by publishing information from the so-called Tuhoe Terror Files. While the judges questioned why police hadn't laid charges for breaching suppression orders and publishing intercepted material, they rejected the claim that publishing the articles created "a real risk of prejudicing future trials".

The accused should get name suppression in sex cases where the victim is related in order to protect the victim's identity.

YES: The law automatically suppresses the names of victims of sex offences. For offences of incest and sexual conduct with a dependant family member, this means the offender's name is automatically suppressed.

This serves to protect the victim from further trauma and psychological distress that can result from publicity. This is particularly important when children or youths are victims. Protecting the victim gets precedence when weighed against the salutary effect on the offender of publication.

NO: Caution is needed because suppressions can work to the advantage of perpetrators and hamper justice. In the case of twice-convicted paedophile Peter Liddell, name suppression impeded other victims coming forward. Some victims want the name of the offender known even though it may identify them.

Tanya, a victim of abuse by her father, told the Weekend Herald in 2004 that the importance of society's public condemnation of her father's behaviour should not be underestimated.

Though her father was sentenced to nine years' jail for repeated rapes, he cannot be publicly identified. Consequently the Herald could not identify Tanya and had to pixelate a photograph despite her wanting the public to see her "survivor's face". She believed that in her case the suppression order gave power to the perpetrator and took it from her.

Suppression orders penalise print media

YES: In general, print media are more compliant. It was internet message boards that carried information that two of the accused in the Louise Nicholas gang rape trials were in prison, convicted on similar charges in an unrelated case.

Suppression orders can be so pervasive that it makes it impossible for media to adequately report a story. Interim orders may seem unobjectionable but they are significant impediments to reporting when timing is everything.

Permanent orders can prevent the media's watchdog role. For instance, in 2004 two well-connected finance company executives who lost large sums of money in a Ponzi scam had their names suppressed after giving evidence. They argued that their company might collapse if their clients found out about their "Looney Tunes" investments.

But the public has a right to know of the failings as well as the successes of such people. How else are they to make a reasonable assessment of their capabilities and judge whether to put their faith in accountants, lawyers, doctors or finance advisers?

Suppressions purporting to protect individuals from public glare can have the effect of covering up official failings or endemic state problems.

Examples include:

* Suppression by a coroner of details of a murder-suicide case which concealed that the murder victim was not told that his flatmate was a psychiatric patient with homicidal and suicidal tendencies.

* A blanket suppression on spurious grounds of privacy in 2000 of an official's evidence at an inquiry into the Gisborne cervical cancer screening programme that suggested problems with such screening went far beyond one elderly doctor and potentially affected the national screening programme.

NO: Fairfax New Zealand carried information in breach of suppression orders in the Tuhoe Terror Files case in its newspapers as well as on its website. The judges held that a front-page splash long before a trial would not influence a jury.

Most suppressions are not permanent, so the media is delayed rather than prevented from reporting more fully.

Prominent people should have a greater right to name suppression

YES: They are in a different position because their case is likely to attract publicity simply because they have a public profile.

Why should the case of an All Black, for example, accused of assaulting his girlfriend be splashed in the media when a similar case involving citizens with no public profile is not?

Or, as media law commentator Steven Price poses, rather than a matter of privilege isn't it a matter of levelling the playing field, particularly regarding minor offences?

If Joe Public was prosecuted for urinating behind a pub, the media wouldn't be interested, but an All Black would be front-page news. That would be the effect of a judge opting not to impose name suppression, says Price.

"Isn't there a decent argument that that would be discriminatory too and that name suppression merely irons out the discrepancy?"

The heightened public curiosity that results from ability in sport or in other prominent careers should be balanced with suppression orders.

The Law Commission recommends that well-known people should still be able to gain name suppression in instances when publication of their name would cause "extreme hardship".

NO: Preferential treatment for the well-known or well-to-do breaches a fundamental principal that all are equal before the law.

Courts should not make judgments about whether one case or another might attract publicity or whether media or public interest is valid. To do so is to accord special privilege on the basis of position in society, celebrity, sporting prowess or wealth.

In holding that the suppression of the name of a billionaire American businessman (Peter Lewis), convicted of a minor drug offence, should be lifted, the Court of Appeal said:

"The standing of the appellant as an 'extraordinarily successful businessman, community leader and philanthropist' was no ground for suppressing his name in the absence of special harm to him through publicity. No harm ... was suggested beyond the submission that his standing would make media interest in him 'undue'. That is tantamount to a submission that successful or prominent members of the community should receive name suppression because there may be media interest in such people. The Court cannot enter into assessment of whether media or public interest is 'undue'."

The Appeal Court added that to impose a suppression order it must be clear that harm is "real" and serious enough to overturn two of the most important principles of democracy: open justice and freedom of speech.

Any lesser measure constitutes a preference for the already privileged. People with money can appeal to pro-long suppression - as Lewis did - or win permanent suppression. Suppressions encourage speculation and misleading information. In the celebrity drugs case, several people were named on the internet, including one who had nothing to do with the case. In the 2002 case of a businessman convicted of a child-sex offence, the rumour mill pointed the finger at three other men, all of whom felt they had to make public denials.

The internet makes suppression orders impotent

YES: The internet is a global village. There have been examples of suppressed information being carried on overseas websites beyond our jurisdiction - the billionaire's name, for example, was posted on American websites long before suppression was lifted here.

Often people before the courts are so well known to their local communities that the only effect of suppression is to deny publication of common knowledge. The celebrity drug case, the police rape trials, the terror files are examples. The trend is likely to increase where public interest is intense.

Whether or not the internet played a role by increasing the pool of those in the know, a curious John Key learned the name of the entertainer (found to have committed a sex offence, discharged without conviction, granted permanent name suppression) by asking someone he knew.

The Prime Minister believes the ease with which he learned the name shows suppression orders are not working.

The penalty of $1000 is hardly a deterrent to breaching an order, something that is acknowledged by the Law Commission which recommends it be greatly increased.

NO: As demonstrated by the fact that Slater has been charged for alleged breaches of court orders. internet posters can be traced and prosecuted, as can old media.

If a breach is sufficiently blatant and seen as affecting the administration of justice, the Solicitor-General can take action for contempt of court, for which jail is a penalty.

About 700 permanent name suppressions from 150,000 cases were granted last year.

Few can be found through Google.

RECENT CASES

* Former MP, sex offences, automatic suppression to protect victim.
* Comedian, child-sex charge, automatic suppression to protect victim.
* Entertainer, sex charge, victim 16-year-old girl, found to have committed the offence but discharged without conviction, name suppressed permanently because among other reasons conviction and publicity would have a disproportionate effect on the entertainer's career and ability to travel.
* Medals thief, admitted role in burglary of nine Victoria Crosses and 87 other medals from Waiouru Army Museum. Sentenced in October to 11 years jail. Identity and all evidence suppressed to protect related trial.