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Defence lawyers line up against minister’s plan to revamp name suppression law

10 Nov 2022

| Author: Reweti Kohere

Senior criminal defence counsel have not been consulted about plans by Justice Minister Kiritapu Allan to review the law around name suppression and say the minister’s comments raise a raft of red flags. These include Allan’s focus on a “victim-centric” system and her sense of urgency, says ADLS President and senior criminal barrister Marie Dyhrberg KC. Dyhrberg says she’s “always” apprehensive about potential, significant legislative amendments being made on the basis of urgency. “It is the use of urgent, coupled with name suppression, that causes me concern. What does the urgent refer to?”

At stake are fair trial rights, yet hasty legislative amendments could have far-reaching consequences, Dyhrberg says. “Can we identify where the urgency lies? And what will be the opportunities for consultation, particularly when Christmas comes up?” Dyhrberg hasn’t yet been consulted about the minister’s plans but “one would hope – you use the word “hope” – that we would be”.

Criminal barrister Julie-Anne Kincade KC, the convenor of ADLS’ criminal law committee, hasn’t been contacted either. But she’d “welcome the opportunity to provide information as to what happens at the coalface at court”. Whether invited to submit or not, the criminal law committee will make a submission, says Kincade, who lists a raft of criminal justice issues the committee is already dealing with. Name suppression more recently has become another, although once Allan has “actually had advice from anyone, she’ll realise there isn’t really an issue here that needs to be addressed”, Kincade says.

Other defence lawyers LawNews has spoken to say Allan’s eagerness to make name suppression rules “fairer for victims” is concerning and misplaced. Instead, they suggest other issues – including how the rules manage the “untamed beast” of social media and the current, heightened climate of presumed guilt – need greater attention from lawmakers.

System ‘inadequate’

In a recent interview with TVNZ’s Q+A, Allan (Ngāti Ranginui, Ngāi Te Rangi, Tūwharetoa) signalled name suppression laws are in her sights. She also promised to enact new hate speech legislation before the 2023 election.

Five months into her term as justice minister, having taken over from former Labour MP-turned-lobbyist Kris Faafoi, Allan said she didn’t think name suppression was leading to “just outcomes”. She has requested urgent advice. “I don’t think it’s fair and I don’t think New Zealanders looking in on the system think the system is working adequately either.”

Name suppression rules try to reconcile litigants’ fair trial rights with the public’s interest in seeing justice done. Suppression laws have been criticised as inadequate and “out of step with 21st century communication”, and the media routinely contests a process it perceives as prone to inconsistencies. By contrast, the integrity of criminal trials is paramount to upholding the rule of law and ensuring fairness for all parties. And some practitioners believe more could be done to safeguard the principle.

Rich and famous

Kincade is struggling to see where the minister is coming from. “This is one of those things, in my opinion, which MPs talk about being an issue when, in fact, there is no issue. None.” She adds: “Sometimes politicians suggest they’re going to do something about an issue when there’s no issue, to give the illusion they are doing something – in inverted commas – for the complainants.”

Allan has asked for advice on the perception that the rich and famous are better-placed to seek name suppression and the wider effects it may have for others trying to access the justice system. But Kincade says the rules, contained in the Criminal Procedure Act (CPA) 2011, are working as intended. Among the eight criteria comprising the test for suppression, the most invoked is that publication would likely cause defendants, or anyone connected to them, “extreme hardship”.

The courts have ruled extreme hardship must transcend the usual suffering and embarrassment associated with the consequences of publication. The statute explicitly warns against the ‘rich and famous’ perception: s 200(3) states that defendants being “well known” doesn’t mean publication will cause extreme hardship. Kincade says the rules are robust and the courts apply them rigorously. “Any idea that people get name suppression because they’re rich and/or famous is not correct. You only have to look at the legislation itself to be corrected on that point.”

Allan’s comments came just days after the Supreme Court declined to keep former National Party president Michelle Boag’s identity suppressed as the political figure (and a prospective witness) in a wealthy businessman’s high-profile sex and corruption case. Other recent examples include an international sportsman, who was granted interim name suppression after being accused of sexual offending against a 15-year-old and another international sports star, granted permanent name suppression after he pleaded guilty to assaulting his estranged partner.

Media fixation

The media focuses on litigation involving public figures or people who are wealthy and/or successful. But that fixation is largely responsible for the gulf between perception and reality, says criminal law barrister Elizabeth Hall.

The media hasn’t done a good job at explaining court proceedings and criminal justice issues to the broader public, although that has changed in the last few years. “If the public hold a perception that is so grossly inaccurate, the only place they get that from is the media reporting,” Hall says.

According to Ministry of Justice statistics, the vast bulk (92%) of those facing 168,300 charges laid in the 2021/22 year weren’t granted name suppression orders – a figure largely consistent with the last decade of reported data. Three percent of charges received only interim name suppression, which defendants at their first appearance commonly get upon making an arguable case for protection. Only 1% of those charged were granted interim and final suppression orders.

New Zealand Bar Association president Maria Dew KC agrees that name suppression is more readily available for those who can afford to seek it. But access to justice concerns aren’t limited to name suppression applications. “We know that lack of access to legal assistance disproportionately impacts low-income defendants and victims,” she says. “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.”

An RNZ investigation in 2021 found Māori were charged with 43% of crimes but accounted for only 17% of the interim and final name suppression orders. By contrast, Pākehā made up just over one-third of those charged yet accounted for two-thirds of interim and final name suppression orders.

Most of criminal law barrister Emma Priest’s clients who seek name suppression are from Māori or Pasifika backgrounds, and may face multiple charges or have been the subject of negative media stories that could taint the jury pool. Priest “categorically” denies name suppression is confined to the powerful and the wealthy. “The majority of my clients I apply for are on legal aid.”

Front-end protection

The justice minister is also looking at s 203 of the CPA, which automatically suppresses identifying details of complainants of certain sexual offences. However, the court may order publication if satisfied the complainant wants it, understands the effect of the decision and that such an order won’t risk identifying the accused. Hall co-founded Defence Lawyers Association New Zealand (DLANZ) in 2020 and says the advocacy and support group hasn’t been asked for advice. But among defence lawyers, concern about name suppression has persisted for some time although not for the reasons the minister identifies.

In the Q+A interview, Allan explained that only once cases have concluded could “victims” apply for publication, at their own cost. That’s not what the Act states, Hall says, as automatic suppression remains a live issue throughout trial and post-verdict. It may be more straightforward to deal with suppression when a proceeding is on foot, compared with trying to review it in a closed case. But time doesn’t constrain the statutory provision.

While she agrees that complainants shouldn’t be put to any financial expense to forgo suppression, Hall doesn’t think it’s happening. “If you read the section, there’s no need for there to be lawyers appointed or counsel to be instructed to make the application. The courts have victim support workers whose job it is to act as a conduit between complainants and the court,” she says. “There’s no reason why the views of the complainant couldn’t be relayed to the court at any point and then the judge can consider it. I don’t see the legislation is preventing that.”

In fact, she supports the rationale for s 203: complainants are protected right from the start until and unless they want that front-end protection removed. The opposite, where complainants would have to apply to protect their identities, is rife with risk. “A complainant might not know they had to do that or the paperwork didn’t get filed in time or something went awry and boom, their personal experience of what happened is now in the public domain, destroying them,” Hall says. “It’s unpalatable [that there could be] no front-end protection for complainants.

The ‘untamed beast’ 

Also unpalatable, in Dyhrberg’s view, is the “untamed beast” of social media. The courts are only just confronting it. In 2020, the Court of Appeal grappled with how social media might cause extreme hardship in a permanent name suppression application by the young Labour Party staffer discharged without conviction after an indecent assault at a summer camp.

In upholding the young person’s appeal (which was argued by Priest), Justice Rebecca Ellis wrote that the Law Commission, back in the late 2000s, when it was reviewing name suppression rules, couldn’t have considered how universal and toxic Facebook, Twitter and other social media platforms would become. Nor could the commission have understood the extent to which social media would foster “cancel culture”.

In the case of a young person trying to keep their identity permanently suppressed after being effectively acquitted, the potential hardship caused by “pernicious, judgmental, exponential, indelible and often ill-informed publication” on social media platforms was of a quite different magnitude, Justice Ellis said. “Public shaming of this or any kind forms no part of our criminal justice system. It is not the object of open justice. It serves no useful rehabilitative or other social purpose. Its object is humiliation and degradation.”

Dyhrberg says social media can be damaging, but that’s no reason to cease making suppression orders. The difficulty lies in trying to identify the real person whose social media account is breaching the order – and then prosecuting them. “At the moment, there are other priorities. It’s very hard. But just because something is hard, doesn’t mean to say you give up and throw your hands up,” she says. “You cannot allow any weakening of long-standing fundamental principles and tenets of the law to allow you not to pursue it.”

Priest asks what the purpose of publishing defendants’ names in the era of social media is because “vilification – to publicly name and shame – is not a purpose of publication”. Care is needed when publication is sought. “Is it really to inform? Or is it to try a person in the court of public opinion?”

Presumption of innocence

More could be done to preserve fair trial rights. Kincade suggests the time for publication of names is post-conviction – a position shared by Hall, who would welcome reforms that automatically suppress the identities of defendants in all criminal proceedings, with review arising at the verdict stage.

As it stands, no protection is afforded to accused people ultimately acquitted of criminal offending, Hall says. “I’m a firm believer in doing what you can at the outset to stop there being casualties in the criminal justice system, to do what Kiritapu is saying: ‘to not create more harm’.”

Dew says the use of name suppression minimises any possible interference with the trial process, ranging from speculation in mainstream media and on social media platforms about a defendant’s guilt, their character or past events. “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.”

But the minister’s focus on victims is worrying. Priest says the law recognises complainants as victims only once defendants have been found guilty. Allan’s comments don’t recognise this nuance – “a shocking deficit” in Priest’s view. “While the victim is a key stakeholder, the criminal justice system is about the finding of guilt. The parties are the defendant and the community and the focus must be on them,” she says.

Balancing act

Sam Kunowski, Ministry of Justice courts and justice services general manager, confirmed the minister has asked for advice. But he declined to comment on whether reforms are warranted, saying the laws seek to balance a range of factors. “These include the rights and interests of victims and defendants, fundamental principles like the defendant’s right to a fair trial, open justice and the public’s right to see that justice is being done, and consideration of the real harms that can result to victims, witnesses, defendants, offenders and others from the publication of their names and identifying particulars.”

Kunowski says the police are responsible for investigating and prosecuting suppression order breaches, including those on social media. Generally, parties alert the relevant court registry, the ministry or the police of any breach, which is a criminal offence. A police spokesperson confirmed breaches are dealt with as they arise and prosecutors will act only if satisfied prosecution is in the public’s interest and enough evidence exists to make a conviction a reasonable prospect. Neither Crown Law nor the police would confirm whether the minister has sought their advice and neither would comment on whether name suppression is working as intended.

After 25 years of practising as a lawyer, Hall is still asked how she can represent defendants whom she knows are guilty. “No one ever asks a prosecutor ‘how can you prosecute someone when they’re innocent?’ That shows you which way around people think,” she says. More must be done to help people embrace the principles of justice. “We need to shift people’s thinking from ‘the police have laid a charge, therefore the person must be guilty. Let’s throw the book at them and lock them away forever’.” ■

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