Why we keep quiet in court

Since this is a story about secrets, let's start with a list of things I can't tell you. You won't read here the name of the All Black who admitted assaulting his pregnant wife. You won't learn the identity of the famous New Zealander who ripped off taxpayers - although you can easily find it on the internet.

If you want me to let slip the evidence against the fashion designer who had a sideline drug business, forget it. Same goes for any number of things about the police rape case.

It's also impossible for me to ever divulge the name of the man who chased his former partner through a Glenfield street and stabbed her 28 times - even though I could tell you her name.

I can't because these are things judges have decided, for a variety of reasons, that I am not allowed to disclose. They are the subject of suppression orders - an often controversial, but not uncommon, part of the criminal court system.

Still, some things surprise even the most experienced veteran. When two Hastings JPs presiding over routine cases ordered last week that their own names not be published, one senior news executive exclaimed: "That's it - court suppression has reached its nadir."

And so a national news story flared. Which is the puzzling thing about suppression - the cases at the centre of the controversy would not usually rate a mention. But, there it was the next day, on the front page of the Dominion-Post and on page three of the Herald: lawyers in uproar, university law lecturers stunned, and one MP describing it as the most bizarre thing he'd heard this year.

The curious case of the shy JPs raises the question about how broad our suppression laws are. Many (and no, before you ask, not just the self-serving media) say it's time for those laws to be reviewed.

The Criminal Justice Act empowers courts to ban publication of the names, addresses, occupations and other details of people accused or convicted of crimes - or "any other person connected with the proceeding". And wide powers are available to suppress publication of any evidence or submissions. They are laws courts use when they consider there are important reasons - such as the protection of victims or children, to preserve the right to a fair trial, or to take account of people's privacy.

Set against that is an overriding principle that justice should be delivered for all to see (and report on). The Bill of Rights and international conventions dictate that courts should be public.

In a precedent-setting case, the Court of Appeal ruled in 1995 that when considering whether the powers of suppression should be exercised, the starting point must always be "the importance in a democracy of freedom of speech, open judicial proceedings and the right of the media to report the latter fairly and accurately as surrogates of the public".

In America and Britain, suppression of the names of people on trial is almost unheard of.

Archbold, the British bible of criminal law, asserts that openness of judicial proceedings is a fundamental human right protecting individuals from "secret justice administered without public control" and preserving confidence in the courts.

Yet official data suggests courtroom secrecy in New Zealand is on the rise. Ministry of Justice figures obtained by the Weekend Herald show that in cases of convicted offenders more suppression orders were issued last year than there have been for 10 years.

Last year there were 599 interim or final orders for convicted criminals, up from 483 the year before and the highest since 1996 (615). But those figures come with several caveats. About a quarter of the 599 orders last year related to sex offences, most of which would have been the subject of automatic suppression orders to protect victims.

The ministry also notes that its system for recording these orders changed in 2003, and that the 599 cases include temporary and permanent orders.

It's also true that those suppressed cases account for only 0.6 per cent of all cases dealt with by the courts.

But if you ask Law Commission president Sir Geoffrey Palmer, he's sure suppression is on the rise. "It seems to me it has got more frequent over time," says the former Prime Minister and Attorney-General.

It's certainly a far cry from the days in the early 1960s when Palmer, then a law student, spent the university holidays working as a court reporter for the Nelson Evening Mail, where his father was the editor. "I don't think there were any in those days," he says. "I can't remember one."

And if he had it his way, there would be very few suppression orders today either.

"I really believe there are quite a few advantages in having publication from day one," he says. "One benefit is the chance of people with information coming forward.

Palmer also points out that where suppression orders lie, speculation and gossip flourishes as the public engages in a dangerous guessing game.

But most important is the principle of open justice. "Transparency is a vitally important and valuable thing in public affairs."

He admits that his personal view point towards suppression is at odds with the conclusions of a Law Commission report produced just two years ago (before Palmer's appointment).

In its March 2004 report, titled Delivering Justice for All, the commission recommended that names of accused be suppressed until the substance of Crown allegations have been considered by the courts.

It's not a recommendation the Government adopted, but commentator and Victoria University media law lecturer Steven Price supports the recommendation and thinks journalists push the boundaries too much.

In a recent assignment he asked students to find examples of media law breaches. They produced many examples where, if suppression was not blatantly breached, it had been in practice because so many details were provided that it would have been easy for people to conclude who was being talked about.

"I see examples of this from time to time, but the students revealed that it's more pervasive than I'd thought," says Price. While there are few prosecutions for these sorts of breaches, he believes that if more examples were brought before the courts, judges would not be very forgiving.

Judge Michael Lance, QC, vented his anger about this issue when he aborted a trial this year, citing irresponsible media coverage in a case where there were strict suppressions in place.

"I am sick and tired of having to spell out the fine print when it's fairly obvious the reasons these orders are made, to stop the media pushing the boundaries of the envelope and getting as close as it can to not breaching an order but going so close that in fact sometimes in effect it may be," Judge Lance fumed.

In fairness to the media, however, Price points out there are many examples where suppression orders are issued without good reason. "Usually the suppression is interim and is later lifted, but according to the case law, suppression should never have been given in the first place."

Senior Auckland criminal lawyer Gary Gotlieb has handled many high-profile cases involving suppression orders during his 36-year career. He says that where once journalists showed discretion in handling court coverage, these days, he believes, anything goes.

He accuses the media of sensationalism. "The thing that really worries me with name suppression is the damage done once someone's named, and it doesn't go away if there's an acquittal."

He argues that the principle of open justice, introduced to protect the public from the power of the state and secret trials, is being used as a tool by the fourth estate against individuals. Gotlieb wants suppression of all names until conviction, except in very few cases.

So if there's one thing all sides of the argument agree on, it's that suppression laws are in need of review.

Palmer would like to see a proper debate, backed by decent evidence about how, when and why suppressions are ordered. He says the Law Commission's upcoming work on criminal procedure will certainly look at the issue, and he would like to see New Zealand's situation measured against other countries, such as Australia and Britain.

But he would need a lot of convincing to take suppression laws in the direction favoured by Gotlieb, or even his predecessors, for that matter, saying: "I am reluctant to give up the value of transparency."