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Law Commission looks at suppression laws
By Steven | February 19, 2009
The Law Commmission has put out an issues paper on suppressing names and evidence. They’re seeking input, but you’d better be quick.
The paper sets out the various ways names and evidence can be suppressed, and asks whether reform is needed.
In general, they’re looking at recommending that the grounds on which suppression can be granted should be specified more closely, which has to be applauded. It’s currently very open-ended. Even on the Commission’s proposals, there will be nebulous “interests of justice” catch-all grounds, but any movement toward more specificity is to be welcomed.
Interestingly, the Commission takes on Justice Baragwanath (and the Commission’s own earlier opinion) in concluding that the presumption of innocence shouldn’t be a factor in name suppression. Naming a defendant doesn’t suggest that she’s guilty. The Commission could have added that even Justice Fogarty in R v Sila didn’t think that merely naming defendants (as opposed to filming them in court) amounts to a punishment akin to pillory. The Commission says, rightly I think, that the real question is whether the risk of harm by publicity to the defendant’s reputation or dignity outweighs the interests of open justice in any particular case.
Disappointingly, the paper doesn’t much go into the evidence about how suppression orders are currently being used (or misused). How many suppression orders are made in civil and criminal proceedings, for example? What sorts of evidence is usually suppressed? What for? How many suppression orders are interim ones? Some sense of the proportions of suppression orders based on particular reasons would also be helpful. (For example, I don’t think name suppressions are often made for fair trial reasons – if they are, I’d be concerned about that. If they’re not, fair trial ought not to dominate our consideration of appropriate reform).
Nor is there very much on the experience in other countries.
There’s an enigma that mostly goes unaddressed in the Commission’s paper: most of the factors that the courts are supposed to take into account for name suppression (and those that the Commission thinks should be taken into account) tell against suppression. But in reality, name suppression is very often granted. What’s going on?
There is some discussion of current practice. It rather confirms my impression that name suppression in particular is something of a mess. For example, the paper says:
In our research, we heard of cases in which journalists had great difficulty in ascertaining whether there was an order in place in a particular case, and what its terms and duration were. We came across decisions in which the endorsements describing the suppression order at the top of the judgment, which are not always drafted by the judges themselves, were at odds with the content of the orders set out in the body of the judgment. In extreme situations, problems of this nature risk bringing the law itself into disrepute.
Damned straight.
Unfortunately, the Bill of Rights doesn’t get much mention either. The Commission accepts that suppression raises freedom of expression issues. (I’m not so sure it is clear. In the first instance, it’s about access to information, which I’m not sure is encompassed in the freedom of expression right. If someone gets hold of a suppressed name or piece of evidence, then how they are allowed to use it becomes a freedom of expression issue, but only then, I would have thought.) But accepting that there’s a free speech issue, and accepting (as the Commission does) that this means restrictions must be reasonable and demonstrably justified in a free and democratic society under section 5… where’s the discussion about the whether name suppression meets the usual tests for demonstable justification?
But I’m being too harsh. The paper contains a very useful overview of the laws and the principles at stake, and generally asks the right questions about what we should be doing. It also makes some very sensible suggestions. For instance, there’s a gap that means the media can’t challenge a High Court decision on appeal to impose name suppression when it was originally refused in the District Court. That needs to be plugged. Child witnesses should be able to apply to have their automatic name suppression lifted when they turn 17. Public morality needs to be dumped as a reason for suppressing evidence.
Some of the questions are harder calls:
- should it be easier to get name suppression at earlier stages in proceedings?
- how does privacy play into suppression issues?
- should the fact that defendants who are well known are much more likely to suffer adverse publicity be factored in?
- should journalists be allowed to stay when a hearing is closed? How do you define a “journalist” for this purpose?
- should there be a rule that names may not be published before an arrested person has a chance to apply for name suppression?
- should there be a register of suppression orders? Who should be able to access it?
- should the court be able to make suppression orders applying just to the internet (since information published there is so much more easily accessible that it might create risks to later trials that traditional media wouldn’t)?
- should knowledge or recklessness need to be proved before finding someone guilty of breaches of suppression orders? Should the penalties be hiked?
- should people on diversion automatically get name suppression?
There’s still time to have your say on these issues, if you hurry.
Topics: Name suppression, NZ Bill of Rights Act, Suppression orders | Comments Off on Law Commission looks at suppression laws