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.”
