Name suppression in criminal court proceedings is a contentious and nuanced issue. The orders that are made are properly known as “non-publication orders” but suppression is the word that is commonly used.
Most cases centre on the name suppression of the accused. However, the concept is wider than that and may extend to suppression of the facts of a case. In England, even the names of judges in a high-profile case were suppressed, although that was rapidly overturned by the Court of Appeal. In this country, there is an issue about the suppression of the names of the lawyers who appeared in a case.
On many occasions, name suppression for an accused happens automatically. That is in cases of sexual offending, when publishing the name of the accused may lead to the identification of the complainant. I use that word because a complainant becomes a victim only when a charge has been proven.
The suppression of the name of an accused person at first appearance has a low threshold. That is so family members, co-workers and other associates can be notified. If the suppression order is to continue after a first appearance, the threshold is significantly higher.
The accused must establish that publication will cause extreme hardship to him or her, as well as a number of other factors, including prejudice to a fair trial.
Once an accused has been found guilty, the position changes dramatically. Fair trial rights are not an issue and the focus is on extreme hardship to the defendant or anyone connected.
There is a specific direction that the fact a defendant is well known does not automatically mean that publication will result in extreme hardship. There is a perception – perhaps because such cases receive publicity – that high-profile defendants get favourable treatment when seeking suppression. This is not the case.
Whether or not there should be a suppression order is a matter for the judge, who must look at the matter objectively and according to law. In determining whether to make an order that is permanent, the judge must take into account any views of the victim.
At present, there are proposed changes relating to victim input. A very important one is contained in the Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill. This provides that in the case of an adult defendant who is convicted of a sexual offence, suppression orders may be made only with the agreement of the complainant.
This has been characterised as a complainant’s “veto” and in a sense it is. Without the agreement of the complainant, a judge cannot make a suppression order, even though it may be justified by law.
The purpose of the amendment is to protect victims of sexual violence, support the principle of open justice and hold those guilty of sexual offending to account, presumably in addition to any other penalty the court may impose.
The regulatory impact statement from the Ministry of Justice preferred that the court’s decision-making power regarding name suppression should remain.
The court brings an impartial role to the balancing of competing factors when making decisions. This includes the interests of the crown, the legal system, the maintenance of law and order, public safety and open justice.
On the other hand, victim advocates are concerned that name suppression can shield perpetrators from the full consequences of their sexual crimes, and potentially enable them to reoffend.
The difficulty with the proposal is that it shifts the final decision from the judge to the victim. While this may have its attractions for some, it means that subjective emotion can often cloud reason in decision-making and carries with it a personal retributive or revengeful outcome rather than state-imposed consequence.
David Harvey is a retired district court judge.
