Open justice and name suppression

The scales of justice.
The scales of justice.
It can be difficult to look in the mirror.

It is especially uncomfortable when that reflection shows us the worst  of ourselves.

The region’s courts highlight our secret and often hidden shames —  domestic violence, drink-driving, heartless fraud and an unceasing slew of drugs.

Some are inclined to write it off as the shady margins of our society;  the minority; the other.

These crimes might happen in darkness but they take place on our streets.

Like it or not, they are our people.

People who end up in the dock, in our prisons and sitting before probation officers could be people who have been  failed somewhere in their life.

They could be musicians, rugby players, educators, lawyers; no-one is immune.

The Otago Daily Times has a long tradition of reporting all of them.It is not always comfortable — employees and ex-colleagues have appeared  in the court pages too.

Naming and the associated shaming is a widely-recognised part of the  process.

"...The healthy winds of publicity should blow through the workings of the  courts.  The public should know what is going on in their public  institutions.  It is important that justice be seen to be done," an  oft-cited judgement once declared.

Against that background, the ODT had an important legal victory this week.

A local judge began a pattern of suppressing defendants’ names after he  had discharged them without conviction.

A discharge without conviction can be granted if the gravity of  someone’s offending is outweighed by the consequences of the conviction.

The offences involved in these cases were generally less serious in  nature, and the judge decided it would be unfair for the defendants’  names to appear in print.

When the Criminal Procedure Act was introduced in 2011 it raised the threshold for suppression.

The legislation dictated a defendant, or anyone connected to them, had  to prove they would suffer "extreme hardship" if their name was published.

The ODT argued in the High Court at Dunedin that freedom of the press was of fundamental importance to society.

Justice Nicholas Davidson agreed and accepted the District Court judge  had got it wrong.

Publishing details about criminal cases, he said, was not simply about  punishing the person in the dock, it was also a tool to inform the  public of how the justice system operated.

"Open justice requires public knowledge of the ways in which the  criminal justice system sanctions offending, and how it embodies  principles of leniency and compassion.

"It is important for the public to  be aware of when and why the courts respond to personal hardship to see  that they are doing so fairly and in a principled manner, so as not to  favour those of a class with particular characteristics," Justice Davidson wrote in his decision.

Justice Davidson recognised the media regularly self-censored.

There are numerous occasions when the details of a case are too  sensitive or explicit and are subsequently withheld from the final copy.

"That, in my view, reflects a responsible tradition of the media," the  judge said.

That tradition of reporting how the justice system holds our people to  account will endure.

The media must also exercise its ability to hold the arbiters of that  power — our judges — to account.

They are human too.

Add a Comment