New Rules for Name Suppression Proposed

13 Oct 2010

New Rules for Name Suppression Proposed

What Does a Rugby Player, a Hip Hop Artist and an Act Politician Have in Common?

All have had name suppression in our criminal courts at one time or another. The Government says a proposed overhaul of suppression rules will make that less likely in future.

In 1994 Simpson Grierson partners William Akel and Tracey Walker won the right for news media to be represented in Court on the question of suppression in a criminal case.[1] The rationale was that the news media are the eyes and ears of the general public; open justice is a fundamental part of the fabric of our society and suppression impedes the media's ability to report and the public to be informed about the way justice is served in our criminal courts.

Sixteen years later, the Government has announced it will introduce a new Bill to overhaul suppression laws which goes one step further - granting "legitimate media" a conditional right to appeal suppression decisions.[2]

This is one proposal in a bundle which the Government says will make suppression harder to get. The perceived problems with the current framework for suppression under the Criminal Justice Act 1985 are inconsistency, uncertainty and clarity of application. No guidance is provided in the Act which merely provides a broad discretion. This has left the Courts to develop the approach on a case by case basis. More likely, the public perception that name suppression appears too easy for celebrities and other prominent people has galvanised Government action. Justice Minister Simon Power's press release expressly stated "Being famous is not a good enough reason to be granted name suppression".[3]

As the Law Commission concluded in its October 2009 report "Even the existence of this perception [that the principle of open justice is departed from too readily…without clearly articulated reasons] undermines the principle of open justice and risks jeopardising public confidence in the courts".[4] 

The Government's proposals endorse, in whole or in part, 33 of the recommendations made by the Law Commission. These are largely consistent with the approach to suppression mandated by the Court of Appeal (although the Court has avoided laying down any "fettering code"[5]). Once they receive the imprimatur of statute, it is expected the approach will be applied more consistently, particularly at the District Court level where long Court lists and insufficient time to consider broader issues present practical challenges.

Summary of the main proposals

The Criminal Procedure Bill (the Bill) will provide that suppression of name, address or occupation of a person charged with an offence may be made on the following grounds:

• Where there is a real risk of prejudice to a fair trial
• To prevent undue hardship to victims
• To prevent extreme hardship to the accused and/or persons connected with the accused
• Where publication would endanger the safety of any other person
• Where publication would identify another person whose name is suppressed by order or by the law
• Where publication would be likely to prejudice the interests of the maintenance of the law, including the retention, investigation and detection of offences
• Where publication would cast suspicion on other people that may result in undue hardship

Automatic name suppression will apply in cases of incest or sexual conduct with a dependent family member but the victim will be able to apply to the Court for publication of the defendant's name and the Court has to make such an order if the victim is over 18 and understands the nature and effect of the decision.

Importantly, the proposed legislation will reaffirm the principle that there is no presumption of extreme hardship solely on the ground that the accused is well known.[6]

Victims and witnesses are also entitled to have their identity suppressed where publication would endanger the safety of any person or would result in undue hardship to the victim or witness. Automatic name suppression for victims of specified sexual offences would continue. In addition, child victims and witnesses would receive automatic name suppression with a mechanism for name suppression to be lifted in respect of a child victim who has died.  

The Bill will also provide that the Court has power to make an order preventing publication of the identity of persons (including corporations) connected with the accused or the proceedings where publication would otherwise result in undue hardship to that person, whether or not the name of the accused is suppressed. This would change the law to the benefit of employers and others who have some connection with an accused facing a criminal charge. The current position is that an employer's connection is not regarded as a connection with the proceedings but is merely collateral.[7] This means there is no ability for the employer to seek suppression of its identity even if hardship results. In a recent case, an orchestra relying on sponsorship for funding was unable to seek suppression when one of its musicians faced serious arms charges. The publicity associated with the charges jeopardised funding but the Court of Appeal said it had no ability to entertain a request for name suppression. 

The proposed "undue hardship" test for victims and witnesses is less onerous to satisfy than the "extreme hardship" test for an accused. "Undue hardship" means serious hardship or excessive or greater hardship than the circumstances warrant.[8] This reaffirms that name suppression for a person charged is supposed to be exceptional.

The Bill would however make it clear that, at an early stage, a person charged can seek an interim suppression order if there is an arguable case for suppression. Such interim order is designed to be very temporary; it would expire at the next appearance (usually within two or three weeks) and can not be renewed unless supporting evidence is produced. This is principally designed for the first appearance in Court which often takes place before there is sufficient opportunity for legal advice and before information is available for the proper consideration of suppression issues.

On the vexed subject of ISPs and content hosts on the internet, the Bill will provide that where an on-shore ISP or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it will be an offence for them to fail to remove it or to block access to it as soon as reasonably practical.

Penalties for breaching suppression orders will increase substantially from $1,000 to $100,000 in the case of a body corporate and from a maximum of three months to six month's imprisonment in the case of an individual. A breach of name suppression will occur if the name or any particulars likely (either alone or in conjunction with other information already in the public domain) to lead to the person's identification are published. This is commonly known as "jigsaw identification".

The Bill is intended to be introduced later this year. 

Author

Tracey Walker

Partner - Dispute Resolution

DDI: +64 9 977 5088

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