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The President of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture, Maria Dew KC says that overall, the current name suppression regime is working well. Commenting on recent suggestions that the system needs to be reviewed, Ms Dew says that while there is always room for improvement, the current system is doing its job of balancing open justice with fair trial rights and protecting vulnerable parties.
Ms Dew says that name suppression is generally used in cases where, before any finding of guilt, there is a presumption of innocence and to ensure there is no interference in the trial in accordance with fundamental concepts of justice. “Speculation in the media and on social media about the guilt of the defendant or their character or events from the past, can undermine a defendant’s fair trial
rights and the Crown’s ability to run the prosecution.”
Ms Dew says the Bar Association is concerned to ensure that name suppression continues to play an important part in delivering justice. The current law recognises the balance between our competing interests in open justice and protecting fair trial rights and vulnerable parties. We do this by providing for name suppression or other confidentiality orders in suitable cases. While this is a departure from the usual rule of open justice, suppression orders are generally only made when it is necessary. “We live in an age where news stories are widely spread via the internet and can be regurgitated for years to come with a simple Google search. There is no closure, just endless speculation. So, we must make sure we get the right balance,” cautions Ms Dew.
“Significantly, the Crown can oppose an application for a suppression and present its argument against it. The media also can apply to the Court to be heard on any name suppression application and often does so in significant cases. Our system also has a further check by providing appeal rights which allow review of the order in a higher court.”
Ms Dew further notes that the law on name suppression was extensively reviewed by the Law Commission in 2010, when similar concerns were raised publicly about it being too easy for well known people to obtain name suppression. As a result, the Criminal Procedure Act 2011, section 200, made the test for name suppression for defendants more difficult to satisfy.
“The Criminal Procedure Act s200, expressly says: The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection”, says Ms Dew. “Our current system is agile and flexible enough to deal with each situation on its merits, to ensure that the rights of both victim and alleged offender are respected. The Judge will consider a range of sensitive information that is not publicly available, so we have to remember this when commenting on whether such orders are appropriate in a particular case.”
Ms Dew agrees that name suppression is more readily available for those who can afford to pay for a lawyer to make the application. This is an access to justice concern, but it is not limited to name suppression applications. “We know that lack of access to legal assistance disproportionately impacts low-income defendants and victims. This is a problem with access to legal advice and victim support. As a result, it is important to fund the duty lawyer / legal aid systems, and victim support groups, to ensure help is available.”
The Minister for Justice, Hon. Kiritapu Allan, has last week invited a public discussion on name suppression laws in New Zealand, Aotearoa. This is an important discussion because the starting point is our interest in protecting the rule of open justice. The idea that courts should operate in a way that is open to the scrutiny of the public, is fundamental and important.
The law also recognises the balance between our competing interests in open justice and protecting fair trial rights and vulnerable parties. We do this by providing for name suppression or other confidentiality orders in suitable cases. While this is a departure from the usual rule of open justice, suppression orders are made when it is necessary either:
- to ensure a fair trial for a defendant, to protect the presumption of innocence and right to a fair trial for them; or
- to protect the privacy of victims or others involved in a trial, where they seek protection of their identity or naming the defendant would identify the victim or others.
In situations like this, name suppression plays an important role in delivering justice.
The decision of a Judge to grant name suppression is the subject of argument and careful decision making, weighing up the competing goals of open justice, fairness to the parties in the case, and safety of parties, complainants, and others. Because of the sensitive circumstances discussed before the court when these orders are made, the full range of information considered by the judge may not always be publicly available. Caution should, therefore, be exercised in making comment on whether such orders are appropriate in a particular case.
It is also important to note that suppression orders can be lifted if appropriate, for example, where orders have been made to protect the interests of victims, but they prefer the defendant to be named.
Why should we be careful about commenting on cases or naming defendants before there is any finding of guilt?
Under the New Zealand Bill of Rights Act, we are all entitled to a fair trial. That means that the jury must have an open mind and consider the case on relevant evidence. Under the law, any defendant under the law, is innocent unless the verdict of the judge or the jury is that they have committed the offence.
The presumption of innocence and the right to a fair trial are the cornerstones of our criminal justice system. We would certainly all want this for our own family or friends. When there is speculation in the media and on social media about the guilt of the defendant or their character or events from the past, this can undermine a defendant’s fair trial rights and the Crown’s ability to run the prosecution. It is important for the administration of justice to be sure that a jury comes to a hearing with an
open mind and makes a decision based only on the evidence presented in Court, not in the media. What is available under the law currently?
The law on name suppression was extensively reviewed by the Law Commission in 2010, when similar concerns were raised publicly about it being too easy for well-known people to obtain name suppression. As a result, the Criminal Procedure Act 2011, section 200, made the test for name suppression for defendants more difficult to satisfy.
A court may make an order forbidding publication of the name address or occupation of a person who is charged with, convicted or acquitted of an offence, only if the court is satisfied that publication would be likely to (in summary):
- cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person
- cause undue hardship to any victim of the offence
- create a real risk of prejudice to a fair trial
- endanger the safety of any person
- lead to the identification of another person whose name is suppressed by order or by law • prejudice the maintenance of the law, including the prevention, investigation, and detection of offences or the security or defence of New Zealand.
The Criminal Procedure Act s200, expressly says: “The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection”. Defendants can apply for interim suppression when first charged, but they must advance an arguable case for name suppression on the grounds set out above and the order will expire at their next appearance unless supporting evidence is produced.
So the law, as it presently stands, sets an onerous test for obtaining and retaining name suppression. It can be reviewed at any time during the case if circumstances change. The accredited media also have the ability to apply to be heard on any application for name suppression and the wishes of complainants are also taken into account in considering any application.
What more could be done?
The Minister raises an excellent point, that access to lawyers who can make applications for name suppression is often more readily available to those that can afford to pay for a lawyer. We know that lack of access to legal assistance disproportionately impacts Māori defendants and Māori victims of criminal. This is an access to justice issue, which may not point to a problem with the name suppression law itself, but rather a problem with access to legal assistance.
As a result, it is important for duty solicitor lawyers, legal aid lawyers and other victim’s legal assistance to continue to be well funded to ensure this legal assistance is available when and where it is needed.
Maria Dew KC