Sunday, 27 March 2011

Name supression in the courts: again!

A lawyer facing a drink-driving charge has been able to keep her identity secret --- and is fighting to keep her record clear. So reports Edward Grey for the New Zealand Herald (Fri, March 22, 2011): front page news.

The story concerns name suppression. I've written about this before.

In this case the defendant has interim name suppression, presumably citing possible damage to her career given media interest. This is largely fair enough, since she has not been convicted of a crime and may not be as she is seeking discharge without conviction.  If she is not convicted then she should not be penalised, that seems reasonable. It would be silly to release the name and then suppress it after a not-guilty verdict. The whole idea is to prevent the kind of trial by public opinion that Ed's article attempts.

Was the name suppression granted too easily? In this case the defendant wants to be discharged without conviction. Presumably she will be arguing that the result of a conviction would go far beyond the statutory sentence. She will need to convince the Judge that this is a one-time offence. She is very sorry and it will not happen again. Maybe, maybe not. This is the decision before the court and the case is still being argued -- to have a chance at all, the concerns of police and any victims (we don't know if there are any) will need to be addressed.

Anyone may attempt to argue for a discharge without conviction. Not just lawyers. It is actually easier to get for people close to the poverty line than rich or highly qualified people since a conviction could be argued to have a larger relative effect on their ability to find work, and so avoid a life of crime. Our defendant may not be able to continue to practise as a lawyer if convicted but she will hardly be unable to support herself... the prosecution can argue, "she's smart: she'll bounce back. There are other jobs: it's not the end of the World." This is an argument not available to the defence for a minimum-wage, high-school dropout, checkout operator.

Ed makes a big deal of how nobody connected with the case will comment on it. Well doh! It's a matter before the court: commenting would be prejudicial. Judges tend to object to council airing their differences through the media, especially when there is name suppression. It sort-of defeats the whole purpose.

There is also a non-publication order. The idea here is usually to avoid publication of details which may defeat the name suppression, or could result in injury to third parties. You don't want people not on trial to get punished. The very nature of non-publication and name suppression means that the details leading to the ruling will also need to be suppressed, since that may also identify you. It is due to concerns such as these that the Privacy Act so often trumps the Freedom of the Press.

But it is hardly onerous - Ed was able to report the details of public interest (that there is a trial involving a lawyer accused of a drink-driving offense and that details are suppressed to protect third parties etc etc) - do we really need to know the defendants name as well? What for? Everybody who knows the defendant knows who it is anyway which only leaves future employment where you want to know the applicant is not a drunk. This is where the argument (above) that this is a one time thing comes in.

However, secrecy leads to distrust. There has been a growing feeling that some people have been abusing the protections name suppression offers. Perhaps people accused and/or convicted of trust related offences should have more public exposure? Maybe they deserve it?  There are moves to make name suppression and such things tougher to get.

"Being famous is not a good enough reason to be granted name suppression." Say's Simon Power, describing a proposed law change.                      

Denied name suppression, how long would it take a clever defense lawyer to use the consequences to argue down the sentence? The above defendant would be more likely to get a discharge without conviction because she could argue that the result of her name being released in connection with the charge, even without conviction, outweighs the punishment demanded by statute if convicted. Surely we would prefer the courts to be able to throw the book at her should she deserve it?

Fact is: nobody is granted name suppression just for being famous. The whole point is to avoid the situation where the consequences of appearing before the court (never mind subsequent conviction) could lead to an injustice. The effect of appearing before a court is different for different people, the law needs to take this into account. For instance, were I to appear on a drink-driving charge, I would have much lighter consequences than a major public figure would. The conviction would barely affect my own public or work life beyond the statuary punishment, but it could destroy someone else. Yet the both of us are supposed to be treated equally under the law. Simon Powers wants "one set of rules ... for everyone" but he has missed the point. The point concerns justice: pedantic, hard-assed rules just won't give us that. The rule needs to be flexible enough that the same law applies equally to everyone.

In general, there is a balance to be struck if there is to be public confidence in the justice system. Justice must be seen to be done. Too much secrecy is as bad for the system as too little. The Criminal Justice Procedure Bill threatens to swing the balance too far the other way.

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