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« Chris not Christians | Main | Officials drop the BORA on 92A »

Law Commission looks at suppression laws

By Steven | February 19, 2009

The Law Commmission has put out an issues paper on suppressing names and evidence. They’re seeking input, but you’d better be quick.

The paper sets out the various ways names and evidence can be suppressed, and asks whether reform is needed.

In general, they’re looking at recommending that the grounds on which suppression can be granted should be specified more closely, which has to be applauded. It’s currently very open-ended. Even on the Commission’s proposals, there will be nebulous “interests of justice” catch-all grounds, but any movement toward more specificity is to be welcomed.

Interestingly, the Commission takes on Justice Baragwanath (and the Commission’s own earlier opinion) in concluding that the presumption of innocence shouldn’t be a factor in name suppression. Naming a defendant doesn’t suggest that she’s guilty. The Commission could have added that even Justice Fogarty in R v Sila didn’t think that merely naming defendants (as opposed to filming them in court) amounts to a punishment akin to pillory. The Commission says, rightly I think, that the real question is whether the risk of harm by publicity to the defendant’s reputation or dignity outweighs the interests of open justice in any particular case.

Disappointingly, the paper doesn’t much go into the evidence about how suppression orders are currently being used (or misused). How many suppression orders are made in civil and criminal proceedings, for example? What sorts of evidence is usually suppressed? What for? How many suppression orders are interim ones? Some sense of the proportions of suppression orders based on particular reasons would also be helpful. (For example, I don’t think name suppressions are often made for fair trial reasons – if they are, I’d be concerned about that. If they’re not, fair trial ought not to dominate our consideration of appropriate reform).

Nor is there very much on the experience in other countries.

There’s an enigma that mostly goes unaddressed in the Commission’s paper: most of the factors that the courts are supposed to take into account for name suppression (and those that the Commission thinks should be taken into account) tell against suppression. But in reality, name suppression is very often granted. What’s going on?

There is some discussion of current practice. It rather confirms my impression that name suppression in particular is something of a mess. For example, the paper says:

In our research, we heard of cases in which journalists had great difficulty in ascertaining whether there was an order in place in a particular case, and what its terms and duration were. We came across decisions in which the endorsements describing the suppression order at the top of the judgment, which are not always drafted by the judges themselves, were at odds with the content of the orders set out in the body of the judgment. In extreme situations, problems of this nature risk bringing the law itself into disrepute.

Damned straight.

Unfortunately, the Bill of Rights doesn’t get much mention either. The Commission accepts that suppression raises freedom of expression issues. (I’m not so sure it is clear. In the first instance, it’s about access to information, which I’m not sure is encompassed in the freedom of expression right. If someone gets hold of a suppressed name or piece of evidence, then how they are allowed to use it becomes a freedom of expression issue, but only then, I would have thought.) But accepting that there’s a free speech issue, and accepting (as the Commission does) that this means restrictions must be reasonable and demonstrably justified in a free and democratic society under section 5… where’s the discussion about the whether name suppression meets the usual tests for demonstable justification?

But I’m being too harsh. The paper contains a very useful overview of the laws and the principles at stake, and generally asks the right questions about what we should be doing. It also makes some very sensible suggestions. For instance, there’s a gap that means the media can’t challenge a High Court decision on appeal to impose name suppression when it was originally refused in the District Court. That needs to be plugged. Child witnesses should be able to apply to have their automatic name suppression lifted when they turn 17. Public morality needs to be dumped as a reason for suppressing evidence.

Some of the questions are harder calls:

• should it be easier to get name suppression at earlier stages in proceedings?
• how does privacy play into suppression issues?
• should the fact that defendants who are well known are much more likely to suffer adverse publicity be factored in?
• should journalists be allowed to stay when a hearing is closed? How do you define a “journalist” for this purpose?
• should there be a rule that names may not be published before an arrested person has a chance to apply for name suppression?
• should there be a register of suppression orders? Who should be able to access it? 
• should the court be able to make suppression orders applying just to the internet (since information published there is so much more easily accessible that it might create risks to later trials that traditional media wouldn’t)?
• should knowledge or recklessness need to be proved before finding someone guilty of breaches of suppression orders? Should the penalties be hiked?
• should people on diversion automatically get name suppression?

There’s still time to have your say on these issues, if you hurry.

Topics: Name suppression, NZ Bill of Rights Act, Suppression orders | 56 Comments »

56 Responses to “Law Commission looks at suppression laws”

1. Andrew Geddis Says:
   February 19th, 2009 at 3:24 pm

   Stephen,

   Really not sure if there is a NZBORA freedom of expression issue? Consider s.14 in its entirety:

   “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”

   Surely a suppression order limits my (and every NZer’s) right to seek and receive information that we would, absent the suppression order, have a right to access? Sure, I can’t impart this info until I have it … but that’s only half of the right!

2. Steven Says:
   February 19th, 2009 at 4:10 pm

   I’ve thought quite hard about the “right to receive” issue. And it seems to me that it probably cannot mean what it literally says. Nor is that the way it has been interpreted by the European Court of Human Rights (or, in fact, by the Law Commission itself in one of its privacy reports).

   Do you have a right under the freedom of expression provision (even prima facie) to receive information about my bank account or health records? I don’t think you’ll argue for that. Perhaps you’d want to construe the right to receive information as government information, though the provision isn’t limited that way on its face. So you’d say there’s a (prima facie) right under freedom of expression, to all the country’s national security information, all the hospital and employment records, all the legal advice, Parliamentary Counsel draft laws, legislative advisory committee meeting minutes and emails – and any restrictions must be demonstrably justified? I have some sympathy for this – and in fact was hoping that the BORA might be used to hone some of the less justifiable withholding provisions in the Official Information Act and other laws. But this doesn’t really feel like freedom of expression to me – it doesn’t feel like what section 14 construed in context is aimed at. And it becomes positively troubling when you realise you’re also arguing for a prima facie right to access judges’ draft judgments on the basis of freedom of expression. Yes, restrictions may be easily justified in such cases, but do you really think section 14 requires this?

   In Europe, a similar provision has been interpreted to require the right to receive information that someone else is willing to supply (see for example, Leander v Sweden Series A, no 116, 29, para 74 (1987), and the Law Commission’s Privacy Concepts and Issues discussion at para 7.17). From memory, Justice McGrath has expressed similar reservations in a CA access to court records case.

   I’m not giving up on this “right to receive” argument altogether. But I think it faces formidable obstacles.

3. Andrew Geddis Says:
   February 19th, 2009 at 5:31 pm

   “Do you have a right under the freedom of expression provision (even prima facie) to receive information about my bank account or health records?”

   Bank account, no. Banks aren’t subject to the NZBORA. Same would most probably hold true for Hospitals (in relation to their record keeping functions, at least). But yes, I would argue under that s.14 I have a prima facie right to all information about a court’s functioning (as well as parliamentary lawmaking, etc), in just the same way as the OIA creates a prima facie right of access to official information. Frankly, I see the OIA as a particular legislative manifestation of this general right.

   And even on the “willing speaker/willing listener” model, aren’t there still s.14 issues? The rights of the prosecution/court workers/witnesses/court attendees to tell others what is going on in the court room (including who is on trial)?

4. Steven Says:
   February 19th, 2009 at 6:04 pm

   The BORA doesn’t apply to banks, but it does apply to the government and the judiciary. So presumably the courts are required to develop the law consistently with my right to receive information about your bank account?

   Anyway, do you seriously think our courts will go against ECHR precedent on this? And there’s Justice McGrath’s comments in R v Mahanga (an access to court records case in which some of the parties may have been “willing” to grant access) that:

   “Under s 14 of the Bill of Rights, freedom of expression includes “the freedom to seek, receive, and impart information and opinions of any kind in any form”, but that does not confer any right to acquire information, let alone in the form in which a person wishes to use it.

   I agree that s 14 can be construed more widely. I wish it was. But I don’t think that’s what the courts are doing.

5. Andrew Geddis Says:
   February 19th, 2009 at 6:58 pm

   “So presumably the courts are required to develop the law consistently with my right to receive information about your bank account?”

   No. They’d just reach for privacy instead (a la Hosking).

6. Jonathan Says:
   February 21st, 2009 at 2:03 pm

   Stephen

   I’m not sure that I agree with this comment:

   “So presumably the courts are required to develop the law consistently with my right to receive information about your bank account?”

   As Andrew correctly points out, banks aren’t subject to the NZBORA. That being the case, why would the courts be required to develop the law consistently with it? Ordinarily, if a case doesn’t come within a legislative provision, then the provision has no application to my case. To then try and otherwise develop the law in a way consistent with that provision would be to extend the provision further than Parliament intended it to apply. To my mind, that would be an incorrect approach to statutory interpretation.

7. Steven Says:
   February 23rd, 2009 at 12:11 pm

   Hey Jonathan,
   This involves the vexed issue of “horizontal application”. For example, the BORA doesn’t apply directly to me or you, but if I defame you, and the courts have to rule on it, then they are subject to the BORA, so shouldn’t give you a remedy against me if that would create or perpetuate an injustified restriction on my freedom of expression.

   That’s what happened in the Hosking case that Andrew mentions above. That was a privacy case, which again was between two private citizens and no state actors – on your reasoning it shouldn’t involve the BORA at all. But the Court of Appeal said it was subject to the BORA, and had to develop rules consistent with them. The judges checked that the privacy rules it was creating (and it was essentially inventing a tort) did not create an unjustifiable restriction on free expression rights.

   Andrew knows more than I do about the horizontal application of the BORA, but I think in the above post (number 5) he’s acknowledging that, on his reading of the right to receive information, the courts would have to take as a starting point that under the freedom of expression guarantee I have the right to your bank information – but that the courst would easily be able to find that a restriction on my accessing your bank information was demonstrably justified, just as the Court of Appeal found that the tort of privacy is a demonstably justified restriction on freedom of expression.

   I don’t doubt he’s right about that. But my point is: do we really need to go through this justification exercise? Does freedom of expression really stretch as far as including my right to access your bank account in the first place so that we have to look at exceptions to it? My feeling is that it doesn’t. That seems to be the approach taken by Justice McGrath and the ECHR.

8. Graeme Edgeler Says:
   February 25th, 2009 at 9:28 am

   on his reading of the right to receive information, the courts would have to take as a starting point that under the freedom of expression guarantee I have the right to your bank information – but that the courst would easily be able to find that a restriction on my accessing your bank information was demonstrably justified.

   But would it be prescribed by law? And even if it is now (by the Privacy Act, for example), what was the case have been before the Privacy Act (e.g. 1990-1993)? Or would be the case if we didn’t have one?

9. Steven Says:
   February 25th, 2009 at 9:30 am

   … and that’s a good point that again suggests it’s unlikely that the courts will interpret the “right to receive information” this widely.

10. Andrew Geddis Says:
    February 25th, 2009 at 5:24 pm

    Graeme,

    “But would it be prescribed by law?”

    Didn’t matter in Hosking! The C. of A. didn’t turn to the Privacy Act there … instead the fact that they recognised the tort of privacy in and of itself “prescribed by law” the limit on freedom of expression. (Kind of a bootstrapping exercise – but that’s the very nature of the common law, once you abandon the declaratory theory.)

11. Andrew Says:
    March 3rd, 2009 at 11:59 am

    Steven (et al),

    I hesitate to contribute since I’m not a lawyer, but the discussion of whether the ‘freedom of expression’ right can be construed to create a right to information has been discussed in freedom of information circles internationally for some time. I’m personally not sure whether certain FOI advocates have not gone out on slightly too slender a limb to support the construction they have put on it. But in any case a useful summary of their thinking can be found in the first part of this UNESCO Comparative Legal Survey on Freedom of Information, updated last year.

    It might also be worth seeing a declaration (pdf) made last year by the Inter-American Juridical Committee.

    Myself, I think it will be a fairly long time to wait before we see the ECHR, House of Lords or Supreme Court here to explicitly state that the right to freedom of expression integrates a right to information held even by all branches of the state, let alone non-state actors. On the other hand, the Council of Europe did adopt a Convention on Access to Official Documents last year.

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