Editorial: Let's preserve and protect open justice

At a first glance, the Law Commission report Suppressing Names and Evidence appears a document of much promise. Encouragingly, it talks of the need for court proceedings to be more open and for rules governing the suppression of names to be tighter and more transparent.

But on closer inspection, there are grounds for reservation about its prescription for reducing the level of secrecy in our courtrooms. This detracts somewhat from the major pluses of a principled approach and a well-observed appreciation of the justice system's current failings.

The Law Commission recognises that a major problem with the current application of name suppression is inconsistency. Too often, lower courts fail to apply the Court of Appeal's standards, which presume openness and public entitlement.

Indeed, some judges seem to think position and privilege are grounds for suppression. Such thinking has led to the undermining of the Court of Appeal's guidelines. If these were applied consistently, suppression would become a rarity and the public would surely be more willing to accept the device.

The commission suggests, quite reasonably, that judges should have to provide reasons for granting name suppression. However, in virtually the next breath, it undermines this by saying no reason need be given in "exceptional circumstances". It has also chosen to codify the reasons for granting suppression. The list is somewhat alarming in both length and breadth. Included in its ambit are the risk of prejudice to a fair trial, extreme hardship to the accused, undue hardship to victims, and the identification of another person who has suppression.

The list is a stark contrast to the position in the United Kingdom. There, according to the commission's report, the issue is whether publication might frustrate the administration of justice. Suppressions, therefore, are rare and the courts have made it clear they may not be imposed for "the comfort and feelings of defendants".

This approach would have ruled out name suppression for the "prominent entertainer" whose identity was kept secret this month because a judge deemed publicity would have a detrimental effect on his career. Yet under the commission's recommendation, he would likely be granted suppression on the grounds of "extreme hardship".

The commission defends its approach by suggesting there will be greater certainty for both applicants and those opposing suppression, as well as more consistency. The danger is that, in practice, it will make it easier for judges to more consistently waive the presumption of open justice and much more difficult to challenge their decisions.

Fortunately, Justice Minister Simon Power seems aware of the risks and yesterday told the Herald he intended to do something about it.

His stated aim is to stop an emerging "special class" of high-profile people using their status to get name suppression.

Quite how he proposes to do this is not yet clear but it is a necessary objective if we are to preserve and protect those fundamental notions of open justice and equality before the law that we hear so much about.

Some of the Law Commission's other suggestions are most welcome. It supports the development of a national register of suppression orders as a matter of high priority. This would eradicate the confusion that arises when different courts impose suppression orders at different stages of cases, thereby heightening the potential for breaches.

But the report is on less-secure ground when it seeks to control the internet, most notably the increasing trend of suppressed material being circulated. Because this is often hosted on overseas-based websites that are not subject to New Zealand law, there is a strong element of futility in much of what it suggests.