Guilty as Charged: Pre-Trial Name Suppression Law in New Zealand

Abstract

The granting of name suppression in criminal proceedings is currently a controversial issue in New Zealand. Discussion of the topic invariably brings out principles that are at the heart of our legal system: freedom of expression, open justice and the presumption of innocence. This paper will focus on matters concerning pre-trial name suppression orders. Pre-trial name suppression orders prevent publication of a defendant’s identifying details from the time a charge is laid against them until the beginning of their substantive trial. Once the defendant’s substantive trial begins other considerations may be at play, such as a greater public interest in the conduct of judicial proceedings or fair trial considerations, which are beyond the scope of this paper. There is currently a perception held by some members of the New Zealand public that name suppression is granted too regularly and too easily to defendants, and that the law in this area should be reformed. These concerns sparked the New Zealand Law Commission (the Commission) report and issues paper referred to later in this paper. However, such concerns may be unfounded. Using statistics supplied by the Law Commission and Statistics New Zealand respectively, it can be revealed that between 2004 and 2008 suppression orders were only made, on average, in 1.74 per cent of all cases3. This figure clearly rebuts any public perception that suppression orders are granted frequently. The courts’ current power to grant name suppression is contained in section 140 of the Criminal Justice Act 1985. This provision gives the courts overall discretion to develop criteria for issuing name suppression orders. The existence of such broad discretion has contributed to uncertainty and some criticism of name suppression law. Reform in the area is very likely and the time is ripe for significant changes. This paper explains the current law surrounding name suppression in New Zealand and then assesses the Law Commission’s view on possible reform. Ultimately, the conclusion reached in this paper is that the Law Commission is misguided in its recommendations regarding the treatment of name suppression applications at the pre-trial stage. The various Law Commission documents do not pay enough attention to the presumption of innocence and the potential negative impact publication of a charge can have on a defendant. This paper recommends that all defendants should be granted automatic suppression of their identifying details from the time the charge is laid against them until the beginning of their substantive trial. Such a period of suppression best balances the competing rights of the defendant and the public at the pre-trial stage, allowing the defendant’s reputation to be preserved until the merit of further name suppression applications can be considered by the trial judge. The pre-trial stage is an under-regulated and unique period in the criminal process which consequently demands unique treatment.