FACT SHEET 8: SUPPRESSING NAMES AND EVIDENCE

What is the general proposal?

Change the law regarding the courts’ discretion to prohibit the publication of either:

A defendant’s name or details.

Evidence in a particular case.

Why change the law?

The grounds for granting suppression are unclear, and suppression is granted too readily and inconsistently.

How?

Confirming that the starting point for considering publication will continue to be a presumption of open justice.

Replacing the current broad discretion for granting suppression with more clearly defined grounds on which evidence and names can be suppressed specified in legislation.

Suppression generally

There will be general grounds that apply to suppression of names and evidence, such as where publication would endanger the safety of any person or where there is a real risk of prejudice to a fair trial.

Defendants will be able to get name suppression on the general grounds, or on the grounds that publication would:

Cause extreme hardship to them and/or persons connected with them.

Cast suspicion on other people that may result in undue hardship.

To address concerns about well-known people being given preferential treatment, the legislation will provide that there will be no presumption of extreme hardship solely on the ground that the defendant is well known or famous.

In addition to the general grounds, victims, witnesses and others will be able to get name suppression on the ground that identification would result in undue hardship to them.

Automatic name suppression

Automatic name suppression for victims of specified sexual offences will remain (by way of example, 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. Child victims and 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.

Closing the court

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.

Interim suppression orders

A defendant will be able to apply for an interim order if they advance an arguable case for name suppression. An interim order will expire at the next appearance unless supporting evidence is produced and a final order is made.

Appeal and review

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

Media access to suppression orders

The High Court has a procedure in place to help the media in complying with suppression orders. Media representatives are able to initiate a request to receive details of any suppression orders in relation to a particular trial. These details are emailed to the media representative by court staff during the trial. This process has been in place since May 2009 and will continue.

Publication and the Internet

A new offence will be created where an onshore internet service provider or content host becomes aware that they are hosting information which they know is in breach of a suppression order, and they fail to block access, or remove it as soon as is reasonably practicable.

Offences and penalties

The penalties for breaching suppression orders are in need of updating. These will be increased to: For individuals, doubling the maximum term of imprisonment from 3 months to 6 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). A maximum fine of $100,000 for a body corporate (currently the maximum fine is $5,000).

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