Editorial: Easy suppression

16:00, Jan 14 2010

The application by judges of the law regarding suppression of the identities of people appearing before the courts accused of crimes has been erratic and haphazard for some time. Some judges, at least, have taken to granting suppression almost routinely, particularly in cases likely to attract a lot of publicity and particularly in the early stages of procedure through the courts when public interest is likely to be greatest.

In such cases it is often granted with little or no justification for it and no reasons given by the court. The aim appears to be little more than to exert some sort of control over news coverage. This is not a proper exercise of the court's power and is reason enough for the Government to hasten its promise to look at amending the law following recommendations to do so made late last year by the Law Commission.

Not many years ago, suppression at any stage of a court proceeding was a rarity. The courts quite rightly followed the principle that they should operate in public and that their activities should be able to be freely reported upon. Even now, suppression, particularly final suppression after a case is completed, is still uncommon.

But although the law has not changed, suppression has undoubtedly increased. Defendants during the early stages of their cases can often get it merely by asking for it or presenting only the flimsiest of pretexts for it.

It occurs often in high-profile cases or those involving a well-known defendant. This is unsatisfactory.

It is sometimes said that the aim is to protect the presumption of innocence, but that does not make much sense. The rules governing what may be said about a trial are strict. The media can be severely punished for publishing anything that might prejudge the outcome of a trial before it is held, and the presumption of innocence – a rule of legal procedure that puts the onus on the prosecutor of proving the case against an accused – is not affected one way or the other by media reports about a case.

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A clearer, more consistent line about suppression is clearly called for. Reforms along the lines suggested by the Law Commission may help. Although largely a restatement of what is theoretically the law now, they would still make suppression a matter of judicial discretion but would statute explicit requirements for the granting of it.

One of them would be that it should only be granted if it would prevent "extreme hardship" to the accused and/or those connected to the accused. Such a change should, if applied correctly, reduce the occasion for granting of suppression at either the final stage or indeed any interim stage.

One area that would be untouched would be suppression that occurs to protect victims. The law at present automatically suppresses the identities of victims of certain sex crimes. Where these crimes have been committed against a relative or someone closely connected to the accused, it means the name of the accused must be suppressed also. This is entirely right and proper. It avoids aggravating the effects of the crime on the victim.

Sex-crime victims, if they are old enough and understand the effects of their actions, may apply to have the suppression lifted, but without such an application, attempts to evade suppression in cases like that are indefensible.

The Press