Prior Restraints on Media Coverage of Criminal Trials: Critique of New Zealand's Approach to Shift the Balance between the Right to a Fair Trial and Freedom of Expression

Abstract

Is it justified to suppress publication of facts relating to pending criminal proceedings? This question is of great importance, since such suppressing orders can deeply impair the fundamental freedom of expression. On the other hand, publications of pending trials might deeply impair the right of the accused to receive a fair trial. This threat is especially given in countries, like New Zealand, where the judging court consists of a jury, which is perhaps more susceptible for external influence. This paper examines the New Zealand approach to these difficulties and shows that the New Zealand approach to balance the aforementioned rights does not sufficiently consider the importance of freedom of expression. Therefore, New Zealand should modify the legal test for applying prior restraints or anchor modifications in the statutory framework which entitles the Courts to order suppression.