Name suppression numbers drop dramatically

Since the Criminal Procedure Act 2011 tightened name suppression rules, changing the key threshold from “undue hardship” to “extreme hardship”, the number of people granted final name suppression has dropped by 40%.

Marie

Marie Dyhrberg QC

Suppression

Catherine Strong, Miriyana Alexander & Ursula Cheer

According to figures recently released by the Ministry of Justice, 2129 final suppression orders were granted by the courts in 2009/10 but by 2018/19 this had fallen to 1286.

Of these 1286 orders, 48% (or 617) were granted for people charged with “sexual assault and related offending” and 152 for “acts intended to cause injury”. Three applications were granted for those charged with homicide or related offences, though there was a spike in this category in the 2010/11 year when 11 people got final suppression on homicide charges.

The figures do not distinguish between the numbers charged and those convicted: they apply to “charges finalised in court”, the ministry says in notes to the release.

Section 200 of the Act also spells out other criteria judges must consider when deciding to suppress a defendant’s name, such as causing undue hardship to victims, casting suspicion on others which could cause undue hardship, creating a real risk of prejudicing a fair trial and endangering someone’s safety.

The 2011 Act also makes it clear that being well-known does not automatically mean publishing that person’s name will cause extreme hardship. But, in some situations, name suppression is automatic, such as for victims and defendants in specific sexual cases (to protect the victim rather than the defendant), children under 17 who are complainants or witnesses in criminal proceedings, and for most Youth Court proceedings.

Is the new law too tough? Or are judges handing down suppression orders too easily?

Depends on whom you talk to. In the “too tough” camp are criminal barristers such as Marie Dyhrberg QC and Mike Antunovic, who argue the “extreme hardship” threshold is too high and the criteria too rigid. And what happens to the presumption of innocence when a defendant, named publicly at trial, is later acquitted?

In the other corner are members of the news media who, on open justice grounds, say the law is out of step with public expectations. In a world where defendants are “outed” online, apparently with impunity, suppression orders are an anachronism and should be abolished, they say.

For Dyhrberg, the main reason for suppression is to preserve fair trial rights and to avoid poisoning the potential jury pool. The risk often arises when news media publish gossip or their own “research” about the accused, sometimes just hours after an arrest, as happened when a man was charged with the killing of British tourist Grace Millane.

This sort of information might eventually be suppressed at trial because it is too prejudicial, Dyhrberg says. “If, at trial, anything to do with the domestic background is ruled not relevant and inadmissible, it’s too late – it’s already out there.”

And if the defendant’s name were not suppressed between charges being laid and the trial, publication of such prejudicial material could continue for up to two years, depending on how long it took to bring the matter to court.

“Suppression at least tempers the danger that you’ve been participating in gossip, innuendo and pre-judgment if someone is named early in the piece,” Dyhrberg says. “I always use the expression ‘fair trial rights trump all’.”

Not only the media are in her sights here. Dyhrberg cites a case where a man killed his wife. The police called a news conference the following morning, before the defendant had made his first court appearance, naming the couple’s 14-year-old son and his school, and giving details of various domestic protection orders that had been sought against the defendant. “Who controls that sort of thing?” Dyhrberg asks. “The judge? The Solicitor- General?”

And what about the scenario where someone charged with two separate and unrelated offences could be prejudiced if their name were published before both offences were dealt with? Jurors hearing the second matter would struggle to view it objectively if they knew the defendant had already been convicted on the first charge, Dyhrberg says.

“So fair trial rights are a strong one.”

She takes issue with anyone who claims suppression orders are easily granted. “They are absolutely not. They have raised the bar and it’s much harder.”

In particular, people who have reputations – “who actually have something to lose” – are, in her view, “grossly penalised”, more so than the ordinary person, “for having achieved something in the community and for being successful.” And because these cases are more likely to be reported by media, the defendant is hit harder.

The situation is made worse if somebody is acquitted. “Where’s all the publicity then? The person’s life has been made a misery, they no longer have a job, and they’re shunned by people and tagged as a predator. Where are you balancing the publication if they are acquitted? It’s not there because it’s not as sensational.”

What about people convicted of homicide? Should they get final name suppression?

“Well why not?” Dyhrberg says. “If they qualify, irrespective of the charge, they’re entitled to the same protection as somebody charged with shoplifting. Just because they were convicted of murder doesn’t mean you strip their rights away.

“[Name suppression] wouldn’t be for the benefit of the accused or defendant. It would more likely be as a result of harm to the families. In naming a person, you may well be riding rough-shod over the statutory protection victims have.”

On first appearance, many – if not most – defendants get interim name suppression. But it lasts only until their next appearance when their lawyer will need to indicate an arguable ground for suppression to continue. And once convicted, the bar shoots ever higher. “It’s incredibly hard to get name suppression then.”

Media frustration
That’s how it should be, says NZME premium content editor, Miriyana Alexander. “It should get harder to be granted name suppression as you move through each stage of the court process.

“The news media’s frustration is when this process is not properly adhered to. This usually happens when an initial name suppression order on first appearance is simply rolled over at every appearance thereafter, without there ever being a proper debate and discussion, or any evidence as to why the order should continue.

“If this happens it can keep a defendant’s identity secret for weeks and months longer than it should.”

Name suppression law itself has been slammed by a leading academic at Massey University’s School of Communication, Journalism and Marketing.

Dr Catherine Strong, formerly a television and court reporter, says suppression orders are not only past their use-by date but hinder the principle of open justice and are often granted too easily.

“The suppression laws are out-of-step with 21st century communication. There is a disconnect between the intention and the reality. Information can no longer be corralled by simply trying to control what is published in the local newspaper,” Strong says.

“Everyone with a cellphone can be a citizen journalist and broadcast what they have observed, and everyone with a Twitter account can share their observations within seconds.

“This can’t be controlled, nor does it need to be. In a world where the big problem is controlling fake news, it is anachronistic to continue trying to control the dissemination of factual news.”

Strong says “having everything in the open” ensures fairness. “Media coverage of court decisions and deliberations simply allows the public to know how justice is being met, at a time when people can’t attend court to see for themselves.

“Granting name suppression to those who are deemed to have a reputation to protect simply continues the impression it is giving special treatment to the powerful.”

Strong believes a person’s socio-economic status can often determine whether they are given suppression. “The information I’m gleaning is that there are very clear inconsistencies in which defendants have their names suppressed.

“Those who get [it] are normally those who have hired a strong lawyer who is able to argue the case successfully, based on the accused’s so-called reputation. Whether or not this is statistically correct, this is the public impression.

“An example is the case of sexual attack in a nursing home by a person who had a respectable academic job, and the judge gave him name suppression until media petitioned for it to be released a day after the sentence.”

Strong contends the public is often put at risk by the imposition of questionable suppression orders. “There are many examples of members of the public being scammed or put at risk because convicted criminals are able to operate again under a cloud of secrecy.”

In her view, the judicial system has its priorities wrong. “Personally, I would like the system to think first about potential future victims when suppressing a name, rather than thinking about how the charged person’s athletic or corporate career may be impacted.”

Strong also points to what she sees as inconsistencies in the judicial system which can result in accredited journalists being penalised for name suppression breaches while those doing the same thing on social media escape penalty.

“An uncomfortable case is the Australian cardinal who was found guilty of historical child abuse, but 36 journalists covering the case are facing charges of releasing his name when it was suppressed.

Judges cautious
Wellington criminal lawyer Mike Antunovic has similar concerns, saying suppression orders are regularly flouted on social media and websites.

That aside, he says he doesn’t believe there are glaring inconsistencies in the way suppression orders are granted.

“I think the stark reality is that there are in fact glaring inconsistencies in the way in which the media report criminal cases these days. The vast majority of crime in Wellington, including many interesting stories the public never get to hear, is not reported on.

“It is also necessary to understand that a lot of defendants do have their name suppressed on their initial appearance in court if they are facing a charge likely to bring about publicity like murder, but that is normally only so that they can let family know.

“I find judges are very cautious about granting name suppression.”

Antunovic also takes issue with those who believe suppression orders are not conducive to open justice.

“I am not sure reporters or editors can claim any moral high ground regarding the hindrance of open justice because as so-called surrogates of the public seeking open justice, the media these days seem to mainly focus on publishing cases concerning people with a high public profile….

“It should be remembered too that in a lot of these cases where suppression orders are sought by the defence, the judge is of course the gate-keeper in terms of whether the statutory threshold can be met. But don’t forget too that the Crown and/or the police will strenuously oppose applications when necessary.”

Like Dyhrberg, Antunovic believes our rules are too rigid and there can be compelling reasons for granting name suppression to some defendants. “I believe a lot of harm is done to individual defendants when their name is published and [there is reference] to criminal charges, normally sexual offences, and their reputation suffers.

“But everyone seems to forget what might happen 12 months down the track when they are acquitted. How is that harm undone?

Fit for purpose
Canterbury University Dean of Law, Professor Ursula Cheer, says the Criminal Procedure Act, which tightened name suppression rules, is fit for purpose so long as it’s not deliberately undermined by leaking information to social media, which is illegal.

“Following the passage of the CPA, the number of suppression orders made dropped, so it has had an effect. It did this by clarifying the rules relating to suppression. Importantly, it also increased the penalties for breach of suppression orders.”

Cheer also takes issue with those who claim the rules are past their use-by date.

“The current laws are not a mockery and as long as suppression orders have an effect of limiting the circulation of harmful information, they should continue to be made.

“Hundreds of suppression orders are made nationally every week and they operate perfectly well and effectively.

“The CPA has ensured most of those orders are temporary orders which apply to a first court appearance to give alleged offenders time to sort out their affairs, tell their family etc.

“At the second appearance, most of those orders are lifted and strong arguments have to be made to justify their continuance. That is how it should be.”

Cheers says every year the news media “have a go at attacking suppression orders making the same old arguments.

“But unless they can come up with some actual statistics, like an increase in successful appeals which might show that orders are being made for the wrong reasons or for insufficient reasons, and some better arguments than ‘public perception’ and a chilling effect on open justice, they won’t be adding much to the debate.”

NZME’s Alexander agrees the laws are still fit for purpose if properly applied and the correct process followed. But the application is sometimes inconsistent in courtrooms where staff may be unaware of the media’s rights and are ill-informed about the processes.

It can also be difficult getting timely access to accurate information, she says. “There are cases where media have been given incorrect information from court staff relating to suppressions but that is more to do with the heavy work load that court staff have, and the paper-based system, rather than the laws being properly adhered to.

“The media favour a computerised, central suppressions register as a way of improving that.”

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