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PN Name suppression decision considered

By Steven | February 17, 2010

I think the decision is wrong, but I can sympathise with the judge. He cites R v Wilson & Horton (the American billionaire case) but not the other leading case of R v Liddell, where it was held that:

[name suppression orders] are never to be imposed lightly, and in cases of conviction for serious crime the jurisdiction has to be exercised with the utmost caution.

and

… anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh, in relation to the reporting of the name of a person convicted of a serious crime, the general principle of open justice and the open reporting of justice.

This case can fairly be described as serious crime, as the judge accepted. It has a maximum penalty of 10 years in jail. The defendant had thousands of images of girls in explicit sexual poses, and had on one occasion distributed nine of them. He was therefore complicit in the abuse of children. What’s more, he didn’t display any concern for the children in the photos, and how they were exploited. He was sentenced to four months of home detention, during which he was barred from owning or using a computer without permission from the parole officer.

The judge accepted that the public have an interest in knowning of this man’s character, particularly as he is a professional person. How, then, could he justify a name suppression order?

Here are the factors that led to his sentencing and suppression decision. If you want to criticise the suppression then you’re saying you disagree that these factors amount to extraordinary circumstances. As I’ve said, I don’t think they get there. But I can understand why he thinks they do. Anyone fairly reporting this decision really should mention them. Hardly anyone has. Outraged media, this means you.

1. He was abused and neglected in his childhood.

2. It seems he attempted suicide. A psychiatrist said he is still a suicide risk, and that the risk would be “greatly increased” if he were named publicly.

3. He had a clinical addiction to the images. He is in treatment for it. That treatment would be jeopardised by publicity.

4. He had a series of glowing references, from people who now knew about the offending, saying he was a “particularly contientious, intelligent, responsible family man”.

5. He lost his employment and his professional practising certificate. He may be de-registered from his profession. He has lost his income.

6. Publicity might destroy his marriage and cause his wife to lose her job.

7. He has two children who would also be badly affected by publicity.

8. The psychiatric evidence was that he posed no risk to children. The judge concluded that naming him was not going to help flush out other potential offending he’d done, or help keep people safe.

9. He did not look at the vast majority of the images. They images were at the low end of the objectionable-image scale (I assume this means they were pictures of children who were naked and in sexualised poses, but not being actively abused beyond the abuse inherent in such pictures).

10. The evidence was (quite rightly, as it’s turned out) that there was likely to be high media interest in the case, which would intensify the damage from his naming.

These are hard calls. I wouldn’t want to be making them.

Topics: Media ethics, Name suppression | 7 Comments »

7 Responses to “PN Name suppression decision considered”

  1. dpf Says:
    February 17th, 2010 at 5:44 pm

    As I look through these, I wonder how many apply just to him, and how many would apply for almost everyone who is convicted of child porn offences.

    1. Childhood abuse may not apply to all offenders, but probably many of them. And more to the point is more a mitigation for sentencing than supression.

    2. The suicide risk may not apply to all offenders, but it is very very easy to claim. I suspect many Judges hear this, in these cases.

    3. The agreement for treatment is probably a factor in almost all cases, and is balanced by the lack of remorse over victims.

    4. Glowing references may not apply in all cases. But again more a sentencing than suppression mitigation IMO.

    5. Almost everyone convicted of this offence will lose their job.

    6. Most child porn offenders risk their marriage if named – is he any different? And I doubt his wife can be legally sacked for what he did.

    7. Any offender with children will be in the same situation. Having children is not unusual.

    8. The psychiatric evidence is probably the strongest argument.

    9. The low level of abuse is a reasonable factor, but to some degree balanced by the sheer volume of pictures.

    10. I suspect there has been more publicity due to the lack of naming, than otherwise would have been the case.

  2. Steven Says:
    February 17th, 2010 at 6:38 pm

    I’m a bit surprised to see you write that. For one thing, I do point out that the factors were relevant to the decision about sentence and suppression. They’re not all cited in favour of suppression.

    More importantly, you of all people know enough about statistics to know that a series of factors, though individually common, are much less likely to occur all at once. (There’s some overlap, I’ll concede). And you’re downplaying the fact that uncontested evidence was given here by a psychologist and a psychiatrist. That’s not your run-of-the-mill case.

    Finally, you seem to be spinning some assumptions out of whole cloth about childhood abuse and the frequency of people arguing suicide.

    That said, I agree with what I take to be your general point: that a wealthy defendant with good lawyer in an objectionable publication case (and others actually) will often be able to mount a fairly compelling case even when their circumstances are not actually all of that unusual.

    And, of course, I agree with your conclusion (though with more trepidation that you) that the circumstances aren’t extraordinary enough to justify a suppression order.

  3. Justin Says:
    February 18th, 2010 at 8:59 am

    I do accept that with “high profile” offenders the media coverage generated can mean they effectively suffer a harsher penalty than mr. nobody who commits the same crime. I would think the principles of open justice would need to be balanced with the concept of equitable sentencing? On the surface it would seem you could argue that point in this case (seems he has already screwed up a good chunk of his life without being named).

    But… if I take the points you outline from the judge at face value they don’t appear to put forward a strong enough argument to me that allowing him to be named would make things that much worse than they are today.

  4. mproctornz Says:
    February 18th, 2010 at 7:10 pm

    I note that at para 56 the judge says that “the distress inevitably caused to your wife and children if your name were published would be extreme.”

    In itself, would that be enough to satisfy the proposed test under the Law Commission recommendation? Or is this just a poor choice of wording on behalf of the judge?

  5. Justin Says:
    February 19th, 2010 at 10:17 am

    My understanding is that the Law Commission report states suppression may be granted to prevent “extreme hardship” to people connected to the accused (e.g., wife) if the accused (convicted person) applies, or “undue hardship” if the wife applies.

    I’m not sure that ‘extreme distress’ in its self would warrant suppression, give the commissions general stance that the ‘default’ position be one of open justice. You’d have to argue that the distress caused hardship that was excessive to the circumstances. Also I think the report also notes that a certain level of distress and hardship to families is ‘par for the course’ when someone offends.

    Having said that the judge also notes things like loss of job for the wife, which could be argued (when combined with everything else) causes undue hardship (maybe even extreme). So if I read it right that alone may be grounds for suppression under the Law Commissions recommendation.

  6. mproctornz Says:
    February 22nd, 2010 at 1:20 pm

    It would need to be extreme hardship, as the application is for suppression of the defendant’s name, not the wife’s name. Clauses 3.43–3.45 of the Report.

    You’re right that the ‘default’ position is one of open justice, and that some hardship is expected: in R v Liddell (uncited in the judgment) Cooke P ruled that
    “…anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh … the general principle of open justice and the open reporting of justice.”
    The Report endorses this passage.

    I suppose you’re right in that “extreme distress” does not automatically mean “extreme hardship”. But it’s not hard to argue that it does… That’s why I wonder if this was just a slip of the pen on behalf of the judge.

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