Editorial: Open justice

OPINION: A fundamental principle in the operation of the courts in New Zealand is that they should conduct trials in public and that it should be possible to freely report on those trials.

The rule is one that has been enshrined for centuries in the English legal system New Zealand follows and is now embodied in at least two local statutes. In criminal cases, however, the courts are subject to further statutory rules that give discretion to suppress evidence and the identities of people involved in them. So far as the identities of accused people are concerned, no criteria are set down in statute for judges to follow in deciding whether to grant suppression or not.

While there is no doubt that judges try to apply the law consistently and fairly across the country, inevitably, with nearly 200 judges making hundreds of decisions each year, suppression has become something of a mish-mash. There is a perception, for instance, that the more well-heeled and prominent an accused is the easier he or she will be able to get suppression.

It is not helped by such recent cases as that of a prominent entertainer, facing a charge of indecency against a teenager, who got permanent suppression of his identity on the ground that the bad publicity would affect his record sales. At least one other entertainer has received similarly tender treatment and in several cases in the last few years well-known, and even not so well-known sportsmen, have received suppression in what appear to be very flimsy grounds. Repeated statements by the Court of Appeal that open justice should be the uppermost consideration barely seem to get a look in.

It is heartening therefore the Government has indicated it will look favourably on a report this week by the Law Commission aimed at refocusing the courts' attention on the basic principle of open justice, bringing greater clarity to the rules on suppression and ultimately making it harder to get. The commission has sensibly proposed that the grounds for suppression should be set down in statute. The reports suggests seven grounds, of which the most significant would probably be that suppression should be granted only where it would prevent extreme hardship to the accused and/or those connected to the accused.

It would be possible, of course, for judges to read "extreme hardship" down so that anything, such as an entertainer's record sales, could qualify but provided the statute were appropriately drafted that could be guarded against. The Court of Appeal has already said that distress, embarrassment or adverse personal and financial circumstances are not enough to qualify for suppression unless they are "out of the ordinary". If the threshold was raised to the standard the Law Commission suggests, and the principle of open justice strongly restated, there should be reduced scope for soft decisions.

Not many years ago suppression was granted only in exceptional cases. The idea that an accused should not have to face the publicity consequences of his or her offending is a comparatively recent innovation. Other jurisdictions similar to ours still use suppression sparingly. The recommendations of the Law Commission are a cogent restatement of the sound principles of the past and should be swiftly enacted.

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