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Jesus, this law sucks

July 27, 2008

A belated note: the UK has abolished the offence of blasphemy. It was a stupid offence for any number of reasons, not least of which is that it only applies to insulting Christianity.

I’m with Norightturn, who reckons it’s time to follow suit in NZ.

Blasphemous libel is still in the Crimes Act.  There has only ever been one prosecution for blasphemy in NZ (in 1922), and a prosecution requires the consent of the Attorney-General, so it’s not exactly a huge threat to freedom of expression. But it’s not a justified restriction, and we should dump it, as we did with sedition.

Topics: General, NZ Bill of Rights Act | 46 Comments »

A burning issue

July 25, 2008

I’m afraid my tirade about the ridiculousness of Valerie Morse’s conviction for burning a flag didn’t do any good. She lost her appeal to the High Court.

Morse burned a flag at last year’s Anzac Day dawn parade at the Cenotaph in Wellington. She was gathered with other protestors in the university grounds over the road. She burned it just as the former Secretary of Defence began to address the crowd of 5,000. She burned it to spark political debate about NZ’s involvement in Afghanistan. While she burned the flag, the guy next to her blew a toy trumpet.

People at the dawn parade were upset and angry. Morse was convicted of offensive behaviour.

Note what she wasn’t convicted of: flag-burning. That’s a separate offence – and, you would have thought, the right one to charge here. Perhaps they couldn’t get the Attorney-General’s consent to bring the prosecution. Perhaps they figured they’d lose this case the way they lost the Paul Hopkinson one. Either way, that seems to be a pointer toward not prosecuting, not towards finding some way of circumventing our real flag-burning law.

Justice Miller started off well. He recognised that free speech under the Bill of Rights means the bar for offensiveness is raised in protest situations, where protestors were trying to convey their opinions, so the public have to tolerate a higher level of disturbance than is usually the case. He rightly noted the Brooker case, and its implication that you can’t characterise conduct as offensive if this would overstep the mark of reasonable limits that are demonstrably justified in a free and democratic society.

He even accept that:

Because the protestors were expressing genuine political opinions, a high value must be attached to their freedom of expession in this case.

Right on all counts.

But applying the law to the facts, I think Justice Miller dropped the ball.

He said some people might object to the theme of the protest (a banner said “conscientious objectors – the real war heroes”) as “a protest at the very idea of commemorating those who died while on active service.” But Valerie Morse didn’t carry any banners. Even more fundamentally, this reasoning overlooks the first principle of serious free speech jurisprudence: a towering suspicion of any restriction based on disagreement with the message or viewpoint being conveyed.

Worse than that – the judge regarded the symbolic nature of the protest as an aggravating factor, because the flag was so dear to the hearts of the attendees. Um, that was the point of the protest.

Miller J also said Morse “associated herself” with the noise of the guy blowing the trumpet. But she wasn’t charged with being a party to his offense. In fact, he wasn’t even charged with offensive behaviour – a charge that might have had more merit. It’s troubling to see a criminal conviction turning on this sort of flimsy taint-by-association reasoning.

Finally, Miller J emphasised that some people in attendance were outraged by her conduct, and that their views “were neither surprising nor unreasonable.” Of course, that’s true. But the question isn’t whether it was  reasonable for the people to be offended. The question was whether it was a demonstrably justifiable restriction on Morse’s free speech rights to be arrested, convicted, and fined $500 for burning a flag, without endangering anyone’s safety, as part of a political protest during the speech of a former defence official who was across the road –  in a prosecution that was contrived to circumvent the protections in the law specifically designed to address flag-burning.

I think the answer is plainly no. Not only did both judges disagree with me, they thought the offence was a “serious one of its type”. Good grief.

Her case is going to the Court of Appeal. Let me say again, I hope she fares better on appeal.

Topics: NZ Bill of Rights Act, Protest speech | 4 Comments »

Well, der.

July 22, 2008

What was Radio NZ thinking?

It tried to appeal against a BSA decision that had RNZ dead to rights.

RNZ didn’t even argue in the High Court that it got its facts right – just that the BSA shouldn’t have ordered it to broadcast a correction. RNZ tried to argue that events had moved on, and that the correction would be confusing. The BSA sometimes accepts this argument, but more often it doesn’t. The BSA’s correction order here was in line with its usual practice, and fully justified. It’s always likely to be a waste of time to seek to challenge the BSA’s discretion on this.

Simon France J wasted no time in tossing the appeal, awarding costs to the other side.

(The case isn’t online yet, but is RNZ v Wellington City Council, CIV 2008-485-514, HC Wellington, 9 June 2008).

Topics: Broadcasting Standards Authority | No Comments »

Fair enough?

July 22, 2008

In Which Steven Writes Another Overly Long Post About A Controversial But Potentially Significant BSA Appeal, And Starts Off Disagreeing With The Judge, But Winds Up Coming Close To Changing His Mind, Perhaps Because She Cites His Article.

  

Justice Mallon has overturned a Broadcasting Standards Authority decision that found a Close Up programme unfair (search for “Heather Green” here). I discussed the original decision here.

To recap: during a programme on “naming and shaming” drunk drivers, Close Up sent a reporter to the courts. He interviewed two convicted drunk drivers coming out of court. One was happy enough to be interviewed. The other wasn’t. Viewers were treated to the edifying spectacle of the camera crew chasing her down the street and in and out of a shop. (She was being shamed – get it? So her reaction was relevant to the programme). Still, she was pixelated – but at the end of the programme, she was “unmasked” and the pixelation was ceremoniously removed. (She was named. Named and shamed. So viewers were able to really understand what naming and shaming was all about, because here was this example of it before their eyes. It would help us decide whether or not naming and shaming really works. Except that… no, it didn’t do that at all. It did show us that some wrongdoers – half, on this sample – don’t like being shamed on national TV).

The BSA said she was treated unfairly. It said that, by chasing the woman down the street and then sensationally unmasking her, Close Up had gratuitously singled her out and gone out of its way to humiliate her. On my reading of the BSA’s decision, if TVNZ had simply filmed her, unpixelated, coming out of the court and tried to interview her, and revealed her name and drunk driving history, that would have been okay. The BSA says that the facts were matters of “public record” – it was the manner in which she was portrayed that was unfair.

As I’ve said, I’m on the fence about that decision. Fair to say, I don’t have much sympathy for a twice-convicted drunk driver. It wasn’t even her who complained. It was a publicly spirited couple who thought she’d been treated unfairly. I think reasonable people can disagree about it. 

But I think it was within the zone of the BSA’s discretion. They were unanimous, after all. Two of them are former broadcasters, and have never struck me as particularly soft.

But Justice Mallon disagreed. She just couldn’t see that this was unfair. She thought that the BSA ignored a gob-smackingly relevant consideration – the requirements of open justice, which allow journalists to interview people coming out of court, and to broadcast the details of what happens in court.

Well, yes. But as I explained, I don’t think the BSA for a moment thought they were doubting that. Had they thought about it a bit harder, they probably would have thrown in a paragraph to that effect.

Justice Mallon also thought the BSA hadn’t paid enough attention to the point that the “unmasking” was not gratuitous because it was relevant to the theme of the programme. It’s true that the BSA didn’t spell this out. But it’s a bit insulting to suggest they didn’t understand what Close Up was trying to do. I suspect they felt that it was a ham-fisted attempt to test the “name and shame” idea that didn’t really ameliorate the unfairness.

Justice Mallon also pointed out other decisions in which the BSA has allowed broadcasters to single out individual people and use them as examples of bigger problems. Right. But in none of them did the broadcaster chase someone down the street and then theatrically remove their pixelation.

There’s an element of the BSA being hoisted by their own petard, as they had this decision cited back at them – a case where they found the treatment of an airport worker caught on hidden camera wasn’t unfair. I think it was.

Anyway, having found that the specialist broadcasting experts on the BSA missed a couple of key considerations, the usual course would have been to send the case back to them to re-consider the decision, this time taking those considerations into account. But instead, she re-took the decision herself. This just wasn’t unfair, she decided.

This was because those overlooked considerations inescapably drove her to the conclusion that any decision to uphold this complaint would be an unjustified restriction on freedom of expression. She kindly cited my article with Claudia Geiringer on the BSA and the Bill of Rights. Following our suggested methodology (which in turn draws heavily on overseas free speech theory and cases), she first looked at the values underlying the particular exercise of speech in question. She found that the speech in this case was particularly important. It explored a practice that endangers thousands of us. It investigated the use of a particular form of deterrent. It highlighted the sheer ordinariness of drunk driving. Weighed against that, the woman’s (and the public’s) interest in avoiding embarrassment for a particular drunk driver was not heavy. So the restriction was unjustified.

Excuse some serious geekiness, but for me, this is a pretty exciting development in our free speech jurisprudence. The courts are now prepared to conduct a proportionality analysis in these cases – and will expect the BSA to do likewise. (Not to mention the censorship authorities…)

I don’t think I would have tackled the proportionality analysis the same way (I think Mallon J rather downplays the general aim of protecting people against humiliation, and I think Close-Up’s humiliating approach added little to the underlying public interest in the themes being discussed). But I can respect her reasoning. And as a methodology – creating a culture of justification based on weighing the significance of the standards and the speech in each case – this strikes me as a breakthrough.

[PS: Kudos to TVNZ lawyer Willy Akel, who was sure all along that this appeal was a winner. I disagreed, but he was right.]

Topics: Broadcasting Standards Authority, Court records, NZ Bill of Rights Act | 1 Comment »

T-shirty

July 2, 2008

The Society for the Promotion of Community Standards was angered by this T-shirt (scroll down a bit). So they asked the censor to ban it. He did.

You might be surprised that T-shirts can be censored. But they can, just like books, films, papers, billboards, or material on a website.

Why did he ban it? Well, it’s got “Jesus is a cunt” on the back, for one thing. The censor’s office can age-restrict “highly offensive language”. But that doesn’t authorise a complete ban.

The office can ban material that describes, depicts, expresses or otherwise deals with matters such as sex, horror, crime, cruelty or violence, if its availability is injurious to the public good. The law sets out a list of criteria to help him determine that.

Well, the picture on the front (a near-naked, masturbating nun captioned “vestal masturbation”) is certainly a “matter such as sex”. But is the T-shirt injurious to the public good?

The decision points to two particular statutory criteria:

1. The extent and degree to which, and the manner in which, the publication degrades, dehumanises or demeans any person.

2. The extent and degree to which, and the manner in which, the publication represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of discrimination [including religious belief].

The office sort off rolls these up. Here’s the guts of the decision:

The publication degrades and demeans the woman pictured, and by extension all women, and also degrades and demeans the beliefs and values of Christian people, and in particular those who follow the Catholic doctrine, to a high extent and degree by firstly presenting an image of a partially naked, traditionally clad non involved in implied sexual activity, and secondly by using a highly offensive word to describe Jesus Christ. The image and text are possibly intended as satirical and anti-religious humour, but overall the t-shirt has a crude, objectifying and vulgar tone.

The image of the nun is sexualised. It encourages an attitude that sexually inexperienced women, and women who have decided to be sexually inactive or celebate, are to be mocked for their choice, and implies that even though they have made this choice, these women are sexually insatiable.

Additionally, the publication degrades and demeans the Roman Catholic women with a subtext that denigrates Mary, the mother of Jesus, by presenting a woman, particularly a nun, in this way. There is a deliberate intention to strip away the respect, honour and status given to women by this belief system. This is also evident in the simplistic play with words in the title of the image, which reads “Vestal Masturbation”, using the word “vestal”, which is normally followed by the word “virgin”, together denoting service, scared purity and chastity to describe a sexual activity.

The text on the t-shirt, “Jesus is a cunt”, uses a word regarded by society in general as highly offensive, to insult a revered Christian figure. This use of the word “cunt” has been chosen to be abusive and insulting to those who have beliefs which hold Jesus Christ in high regard. It also denigrates women by using a term used for a woman’s vagina as a derogatory slur. the word is also frequently used in some contexts as the ultimate vilification for a person one dislikes, or finds extremely disagreeable or unpleasant. In this respect, the word as it is used in the sentence “Jesus is a cunt” can be said to invite hatred and ridicule of Christians.

The decision also describes the T-shirt as:

Gotta say, this smacks to me of the censor’s office going “yuck” and looking for reasons to justify their gut feeling.

A lot of this reasoning just doesn’t stand up. Does the image demean the woman depicted? Looks like she posed for it to me. Does it demean women generally? I don’t read the T-shirt to suggest that all women are sexually insatiable. Anyway, this interpretation goes against the recent attitude of the Film and Literature Board of Review. Does it denigrate the Virgin Mary? Um, I’m not sure that the Virgin Mary was the sort of “person” Parliament had in mind when it passed the statutory criteria. Does it use a term for a woman’s vagina as a derogatory slur? Yep. Like calling someone a prick or a cock. (Okay, but worse).

The office really has no place deciding that something is “blasphemous”, and using that to support a ban. That’s not part of its statutory criteria. It should also be careful about how it throws around the word “offensive” except in the context of the provision dealing with swearing, which does use the word “offensive”. So the T-shirt is “crude” and “vulgar”. What of it?

The censor’s office plays right down any message the T-shirt might be conveying. I would have thought it is satirically pointing up the way Christianity sexually represses women. It might also be suggesting that even the most morally upright of us can have secret fantasies.  

Maybe these lyrics (which seem to have inspired the T-shirt) shed some light on the message:

Even a man who is pure in the heart
And speaks in prayer by night
May become a wolf when the wolf’s bane bloom
And the winter moon is bright…

Queen of Winter, throned
The murderess lurked in vulgar caresses
Vestal masturbation
(Purity) Overthrown

Does the T-shirt “demean the beliefs and values of Christian people”? Well, maybe. But it’s allowed to. The question is: does it present Christians themselves as inherently inferior by reason of those beliefs? There’s a fine line here, but it has to be a carefully drawn one, in order to give proper room for people to advance religious criticisms. The T-shirt is more extreme than South Park, but it’s in a similar vein, and the censor’s office decision can be contrasted with the decisions of the BSA and the High Court to protect religious satire.

Similarly, it’s hard for me to see that the t-shirt has no cultural or artistic merit or importance. It challenges stereotypes, it confronts our notions of offensiveness, it does display some artistic flair, it reflects the politics of a particular subculture, it encapsulates the attitude, brand and message of a particular heavy metal band – it even contains (on the censor’s own reasoning!) a visual reference to Pan, a Greek god associated with fertility. These may not be compelling considerations at the end of the day, but they shouldn’t just be ignored.

The intimidation and aggression stuff seems a long bow, too.  Yes, some people may be intimidated by the T-shirt. But it’s not clear how many would be, or how reasonable it is, and it’s a long leap from that to a ban.

In addition, the decision does little more than pay lip service to the Bill of Rights Act, which might be seen to offer some protection to religious criticism and to be leery of restrictions based on taste.

I think at the end of the day, silly as this may sound, this is a T-shirt that deserved an age restriction, not a ban. The censor has pointed out that it’s really hard to do that to a T-shirt. But I don’t think the law permits any more stringent restriction – or at least, the justification advanced by the office doesn’t seem to me to get it there. But perhaps that’s the right solution: age restrict it – then the heat is on the wearer not to expose anyone under 18 to it.

Topics: Censorship, NZ Bill of Rights Act | 152 Comments »

Access Denied

June 28, 2008

Judge Patrick Treston has refused to allow the media access to video evidence in the assault case against police officers at Whakatane. He reportedly said the media coverage would probably be unfair and would “prejudice” the officers, who had been acquitted. Perhaps he was referring to ongoing employment issues and an Independent Police Conduct Authority investigation.

I haven’t seen his full decision yet, but it sounds wrong to me, and I hope he’ll be overturned on appeal. I think we can rely on Justice Lowell Goddard, the judge heading the IPCA, and the police brass, not to be prejudiced by any media coverage. As to whether that coverage will unfair, I’m not sure the judge properly bore in mind the comments of Supreme Court Justice Andrew Tipping in Rogers v TVNZ from last year. The Supreme Court was called on to decide whether a video (ruled inadmissible in that case) should be released to the media, and were presented with the argument that the use of the video would probably be unbalanced. Justice Tipping said:

Concerns were also expressed that TVNZ might wish to present the video or selected aspects of it in a “sensationalist” rather than a dispassionate and balanced way. That argument invites the Court both to speculate and to enter into the murky waters of presentational censorship and editorial control. I would decline the invitation. The videotape should either be made available to TVNZ or it should not. Matters of presentational and editorial judgment should be left where they belong. If it transpires that there are concerns about how the videotape has been used, they can be addressed by recognised causes of action or by reference to the Broadcasting Standards Authority.

Still, there is some authority that once a video has been shown in court, that’s enough “open justice” and the courts don’t need to give a copy to the media. I think this case demonstrates why that approach is short-sighted.

Topics: Court records, Suppression orders | 48 Comments »

Book Review: Thomas’s muscular take on the project of judging

June 27, 2008

“The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles”

By Justice E.W. Thomas

Cambridge University Press

Don’t be put off by the scholarly title. For anyone with an interest in judging, this is a readable and provocative critique of the way many judges go about their job. Justice Ted Thomas’s views about his craft are forthright, colourful, and often scathing. Here’s a typically acerbic example: “It is remarkable that, even today, judicial opinions that are in substance contrary to plain common sense, and even absurd, will be honoured as being ‘legally sound’”.

These views – and their muscular style – will come as no surprise to those familiar with Thomas’s tenure as a judge of New Zealand’s High Court and then Court of Appeal (he retired in 2001 and has occasionally sat on our newly minted Supreme Court). He was by far the most frequent dissenter on a Court of Appeal he describes as “notably conservative”, and his dissents were marked by differences of approach as well as outcome. Thomas scoffed at narrow, technical arguments, focusing instead on the ends of justice and the needs of modern society. For Thomas, the law is a tool to be wielded to serve society, and not simply a factory that churns out neat legal answers according to its own internal mechanics.

Thomas set out his judicial methodology in a series of articles while he was still a judge. This book assembles and refines his arguments, presenting a manifesto for judges around the common law world. At its heart is an attack on a judicial methodology known as “formalism”, which Thomas describes as a tendency to “regard the law as a system of self-contained, internally rational and predictable rules” which provide correct and predictable answers to legal issues.

Most of us probably picture the law like this, seeing it as a reservoir of rules sourced from statutes and cases of yore, dipped into by judges seeking solutions to legal issues. We figure that the law is vast and seamless and coherent and neutral, and yields objectively correct answers to those with legal training. Thomas says judges know this is a “fairy tale.” In reality, the law is “all too often hopelessly vague, needlessly complex, duly burdened with layers of distinctions, and self-evidently in irretrievable disarray.”

Judges, then, are faced with a myriad of choices: Is this fact proved? Is that fact significant? Which earlier cases are relevant? What’s the meaning of this phrase? How should the issue be cast? What’s the underlying principle? How should it apply in this case?

The answers to those questions are seldom dictated by the existing law, says Thomas. The upshot: judges themselves make law, and they do it all the time. And yet, part of the ethos of judging is to deny this, and pretend that the outcomes reside in the law itself. Saying they are driven to particular outcomes by “the law” gives judges “comfortable immunity from responsibility,” says Thomas. It means they are dishonest about the real reasons for the choices they make. Or it means they make bad choices, hog-tied by cases from an older age that have lost their relevance to modern society. “It is better, it seems, to belong to the priesthood and conform to its rituals than to carry the cross for justice and modernity in the law,” he writes.

This sort of religious imagery pervades his critique: Thomas rails against the “piety of precedent” and the “idolatry of certainty”. He thinks judges who are obsessed with rules and precedents and right answers are worshipping a false God, preaching the “rigid Gospel” of formalism. Thomas paints an unflattering picture of formalist judges “venerating certainty”, shrinking from the big picture, happily fitting facts to rules and hoping for justice but washing their hands of responsibility if the outcomes prove harsh. He calls this reasoning, in various contexts, “hide-bound”, “insensitive”, “dishonest”, “self-satisfied”, “blind”, “ill-considered and ill-informed”, “simplistic and false”, “mean-spirited”, “inexcusable” and “silly”. He has written this book to stamp it out.

Thomas is certainly not alone in his criticism of formalism, and he draws on the views of other judges and theorists to make his case. Although he modestly disclaims any pretence of “undue scholarship”, Thomas examines and critiques the main schools of jurisprudential thought, attacking positivism and natural law theory, which tend to present the law as a set of rules, and drawing support from the realist movement, which depicts law as a product of what judges do.

Still, many of Thomas’s pronouncements are guaranteed to send shudders down the spine of those who fret about judicial activism and its effects on the certainty of the law:

Thomas’s critics believe that his approach will (as Thomas puts it) turn the law into a “formless, amorphous, inchoate, hideous, idiosyncratic pottage of half-baked ideas of no value to anyone seeking to order their affairs in accordance with the law or looking for the law to provide stability in an ever-changing world.” Thomas spends much of the book arguing that the fears about untrammelled judicial law-making are misconceived. Judges may not be elected, but this provides the guarantee of independence that is their great strength, he argues. They are accountable through their reasoned decisions and the appeal process. They need to reform the law occasionally – because Parliament frequently ducks that responsibility. They are constrained by a range of factors including the boundaries of “legitimate judicial reasoning”, the incremental, collegial nature of the law-generating process, and the community’s sense of values. Judges can still be guided by past cases – just not wedded to them.

In perhaps the most controversial part of his methodology, Thomas insists that the “just” result is usually readily discernable when a case comes to court, and that judges have an ability to understand the needs and expectations of the community, even though they tend to come from privileged, conventional, educated, white backgrounds. “Values generally, such as a conception of justice in a particular case, tend to be indifferent to different backgrounds, education, and social and economic standing,” he asserts. For Thomas, a judge’s job is to ensure that the law is developed and updated to reflect the community’s expectations of justice and modernity, and other values that the judge perceives as “enlightened”, and in particular, to protect the vulnerable from exploitation by those “unfairly taking or obtaining an advantage at another’s expense.”

Despite the constraints on judges Thomas details, I can’t help but wonder whether concepts like “justice”, “community expectations”, “fairness”, “exploitation”, and “enlightened values” ultimately sit rather more in the eye of the beholder than Thomas would have it. For my part, I found Thomas’s critique of formalism – and his call for more transparency and less game-playing with precedents – compelling, but his solution is problematic. What if some of the constraints on judges Thomas applauds are rooted in the formalistic attitude he loathes? But this debate is an important one, and much the richer for Thomas’s thoughtful book.

Topics: General | 52 Comments »

Dopey complaints

June 24, 2008

Pity the Advertising Standards Complaints Board. Get a load of these complaints, all from its latest summary of decisions:

Topics: Advertising Standards | 50 Comments »

Electoral Finance Act lawsuit tanks

June 24, 2008

Was the Crown Law Office vet that found that the Electoral Finance Bill wasn’t inconsistent with the Bill of Rights Act wrong? Should the Attorney-General have reported to Parliament that the bill was inconsistent with our rights to freedom of expression? Is the Electoral Finance Act itself inconsistent with the Bill of Rights Act?

John Boscawen et al say yes. They’ve taken these issues to the High Court. But they faced a big hurdle. Would the courts even be prepared to rule on them?

The answer is no. On the first two questions – getting the courts to second guess the Attorney-General’s advice to Parliament – this should come as no surprise. The courts don’t like to trespass on Parliamentary Privilege territory.

But on the third – the issue of the consistency of the EFA itself with the Bill of Rights – I was surprised to see the High Court summarily strike out the claim. Clifford J said the Declaratory Judgments Act can’t be used to address moot points because there’s no live underlying dispute between the parties. The situation might be different, he said, if the applicants “sought declarations of inconsistency through NZBORA itself”.

The question of whether the courts might be prepared to issue a declaration or “judicial indication” that a particular statute is inconsistent with the Bill of Rights Act has been much discussed by academics (and occasionally by judges). To strike it out here, with little reasoning, on what looks like a rather technical ground, seems wrong to me.

Perhaps there will be an appeal.

Topics: Electoral speech, NZ Bill of Rights Act | 5 Comments »

Suppression unsuppressed

June 21, 2008

Just how much suppressing are the courts doing? In the past it’s been hard to tell, because statistics have been pretty patchy. But in an admirably prompt response to my request for some statistical information, the Ministry of Justice compiled some data for me from their records.

Name suppression is the perennial hot issue. Is permanent name suppression given out like lollies? In short: no. Out of about 150,000 criminal cases each year, there are about 730 final name suppressions in the District Court and about 35 in the High Court. There are about three times as many interim name suppression orders (five times as many in the High Court), but these are less significant since the media can eventually report them.

The numbers have been fairly constant over the past five years during which these statistics have been recorded.

In general, this doesn’t include the suppression that arises by operation of the law (for child witnesses and victims of sex offences, for example) though it’s possible that sometimes a judge will make a formal order to underscore the importance of the suppression. In addition, final orders may be made after interim ones expire, so there’s some effective double-counting there. Consequently, there probably aren’t as many different discretionary name suppressions as the above figures suggest.

Another caveat: it’s not clear that these records pick up all the suppression orders made. It seems likely that most of them are captured, though.

It’s not always (or not only) names that get suppressed. Sometimes facts (such as past convictions or contested evidence) can be suppressed, too. The courts have a discretion to suppress evidence or submissions. How often is that exercised?  Not too often. About 440 times a year, overwhelmingly in the District Court. Only about a 100 of these each year are permanent.

The Ministry even managed to dig up some stats about civil cases. Name suppression has been ordered in 23 DC cases and 87 HC cases in the past 5 years. There’s no break-down of interim and permanent orders, and no explanation of the circumstances of such orders, so they’re a bit difficult to analyse. The stats also list all of two cases in which facts have been suppressed in the last five years.

I’m a bit sceptical about the civil figures, since they don’t include the one case that I know about – the suppression orders relating to various factual matters (as well as the plaintiff’s name) in the High Court litigation over Anne Hunt’s book. Still, it does suggest that such orders are probably pretty rare, which is some comfort.

Topics: Name suppression, Suppression orders | 1,205 Comments »


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