Government makes name suppression harder to get

Cabinet has signed off proposals that will make it harder for names of defendants and evidence to be suppressed in court, Justice Minister Simon Power announced today.

The proposals, which include new automatic name suppression for child victims and substantial increases in penalties for breaching suppression orders, are in response to the Law Commission’s report, Suppressing Names and Evidence.

The changes will be included in a bill to be introduced to Parliament before the end of the year.

“There has been growing concern that the current grounds for making suppression orders are unclear and that suppression is granted too readily and inconsistently,” Mr Power said.

“There is no guidance in legislation for what a judge should take into account when considering an application for name suppression.

"The Government's proposals replace the current broad discretion for granting suppression orders with more clearly defined and tighter grounds.”

Under the proposals, the court will only be able to make an order prohibiting the publication of a defendant’s name, address, occupation, or other details likely to lead to their identification, on the following grounds:

• Where there is a real risk of prejudice to a fair trial.
• To prevent undue hardship to the victims.
• Where publication would identify another person whose name is suppressed by order or by law (e.g. a victim).
• Where publication would endanger the safety of any person.
• Where publication would cast suspicion on other people that may result in undue hardship.
• To prevent extreme hardship to the accused and/or people connected to the accused.
• Where publication would be likely to prejudice the interests of the maintenance of law, including the retention, investigation, and detection of offences.
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Mr Power said the legislation would make it clear there is no presumption of extreme hardship solely on the grounds that an alleged offender is well known.

“Being famous is not a good enough reason to be granted name suppression.

“To ensure public confidence in the justice system is maintained there must be one set of rules for everyone.

“However, the presumption of open justice must be balanced against the right of a defendant to a fair trial, and we must protect victims where the publication of a defendant’s name would also lead to a victim’s identification.”

Mr Power said the proposals include new rules to further protect those people who are in the criminal justice system through no fault of their own, particularly children.

“Until now, child victims have not been protected by automatic name suppression, while child witnesses and victims of specified sexual offences have.

“To address this, child victims will also receive automatic name suppression, while automatic suppression for child witnesses will be increased from 17 to 18 years of age.

“This recognises that children have a special vulnerability that should be protected by law."

Mr Power said there will also be substantial increases to the penalty for breaching suppression orders, in accordance with the Law Commission’s recommendations, including:

• For individuals, doubling the maximum term of imprisonment from three months to six months. Judges will also be able to impose a fine of their discretion in lieu of imprisonment if the circumstances warrant it (the current maximum fine is $1,000).
• Increasing the maximum fine for organisations from $5,000 to $100,000.
• Introducing a new offence to capture New Zealand-based Internet service providers or content hosts who do not remove locally hosted suppressed information which they know is in breach of a suppression order, and who fail to block access or remove it as soon as reasonably practicable.
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Mr Power said the Ministry of Justice will continue to consider ways of helping the media to comply with suppression orders, including the development of a national register of suppression orders.

“I see merit in a register. But there are issues that need to be worked through, including who has access to it, the cost of running it, and the practicalities of keeping it up to date.

“In addition, officials are monitoring an existing High Court procedure by which media can ask the court for suppression orders relating to certain cases to be emailed to them during the trial. Expanding this to the District Court is being considered.”

The Law Commission began work on name suppression in 2008 and delivered its final report to the Government in November last year.

A copy of the Cabinet paper can be found here.

A copy of the current suppression laws (section 138 to 141 of the Criminal Justice Act 1985) can be viewed here.

Questions and Answers

What is the current law on name suppression?

Section 140(1) of the Criminal Justice Act 1985 gives the court very broad discretion for granting name suppression but it does not set out any criteria for the exercise of this discretion.

How does New Zealand compare with other countries when it comes to name suppression?

Name suppression is currently more readily available in New Zealand compared with other jurisdictions, including the United Kingdom and certain states of Australia where name suppression for adult offenders is generally rare.

What changes are you making to interim orders for name suppression?

Defendants will still be able to apply for an interim order if they advance an arguable case for name suppression but the order will expire at their next appearance unless supporting evidence is produced.

Who will get automatic name suppression?

Automatic name suppression for victims of specified sexual offences will remain (these include sexual violation, sexual conduct induced by certain threats, incest, indecent assault, and sexual exploitation of a person with significant impairment.)

Existing automatic name suppression for child witnesses will be extended to cover child victims who, along with witnesses, have special vulnerability that should be protected by law.

Automatic name suppression will be lifted in certain circumstances. For example, victims of sexual offending can apply to the court for publication of their name. In making its decision the court will take into account the victim’s age and whether the victim understands the nature and effect of the decision.

Will deceased child victims have automatic name suppression?

Officials are currently developing policy around this issue. At this stage, officials consider that a child who dies as a result of an offence committed by another person would not get automatic name suppression.

Will the media be allowed to stay in court when the court is closed to the public?

The right to a public hearing lies at the heart of open justice, and closing the court to the public should be used only as a last resort where a high threshold is met. The grounds will be specified in legislation, and include matters such as: it is required to protect the security or defence of New Zealand; or it is necessary to avoid endangering the safety of any person.
Even where the court is closed, legitimate media will generally be able to be present. Legitimate media will be defined to cover members of the media subject to a code of ethics; and the complaints procedure of the Broadcasting Standards Authority or the Press Council.

Will media be able to appeal against a suppression order?

Legitimate media will be given standing to appeal against a decision in relation to a suppression order.

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