Name suppression: The challenge of name suppression orders

We take a look at how the public interest is balanced against private prejudice in the context of name suppression.

Suppression of publication of a person's name and identifying details arises automatically under some statutes. In other cases name suppression is ordered at the Court's discretion, usually on the application of the defendant concerned. Courts similarly have discretion to order suppression of other matters relating to Court proceedings, including verbal and documentary evidence.

In some circumstances applications can be made to the Court to reverse an order for name suppression, after a specified time or when the proceedings have been determined. Such an application is generally made on the grounds that public interest (in the identity of the defendant or defendants) warrants the lifting of the suppression order. The success of an application will depend on the reasons for the suppression in the first place, and whether it was made at the discretion of the Court or by statute.

Statutory suppression orders

Criminal Justice Act 1985

An example of statutory suppression is contained in the Criminal Justice Act 1985. That Act automatically prohibits publication of the names of victims of certain sexual offences, or of any name or particulars likely to lead to the identification of victims. This provision can include suppression of the name of the perpetrator of the sexual offence, because publication would lead to identification of the perpetrator's victim.

In the case of such statutory suppression, it is the victim who must apply for an order lifting suppression to permit publication. If a victim wishes to have his or her story published, the publisher intending to report the story must ensure the person concerned has obtained the relevant Court order permitting his or her name and identifying details to be published. Before it can reverse a suppression order, the Court must be satisfied that the victim concerned understands the nature and effect of the Court doing so.

The Crimes Act 1961

In the case of sexual offending, it is likely that suppression orders may also have been made by the Court under the Crimes Act, which prohibits publication of details of the criminal acts performed on a complainant, or any acts a complainant was alleged to have been compelled or induced to perform. If an application is made to lift suppression of that information, the Court must also be satisfied it is in the complainant's interest to revoke the suppression order.

In the case last year of Brenda Chan v The Attorney General of New Zealand, Mrs Chan applied to have the order suppressing her name revoked. Mrs Chan, her husband and son had been the victims of a brutal home invasion by three offenders, during which she was subjected to horrific and vicious sexual violation. Orders were made under the Criminal Justice Act prohibiting publication of her name, and under the Crimes Act prohibiting publication of the details of the criminal acts performed on her.

Subsequently, one of the three offenders involved sought damages against the Crown in relation to treatment he had received in prison (following the success of plaintiffs in similar proceedings in Taunoa v Attorney General (2004) 7 HRN 379). In Mrs Chan's case the Court observed that in the Taunoa case "The extent of public interest in the case can be demonstrated by noting that the Government has proposed to introduce legislation to enable victims to recover compensation from damages awarded to prisoners in similar circumstances."

Mrs Chan wanted to contribute to the ongoing public debate on this issue by publishing her story - of the offending she had suffered and the effects of that on her and her family. She accordingly sought orders lifting the suppression orders which had been imposed for her benefit. The Court decided that it had inherent jurisdiction to revoke the statutory suppressions made under the Criminal Justice and Crimes Acts, and that it was appropriate to do so in the circumstances. In cases such as these, although public interest may be intense, it is the consideration of the victim's interest which is considered as paramount by the Court.

The Immigration Act 1987

Another example of statutory suppression is found in the Immigration Act, which imposes confidentiality requirements on its officers, but not necessarily on the media. An incident involving name suppression under this Act was the subject of complaints to the Press Council last year.

The New Zealand Immigration Service (NZIS) filed complaints with the Council against The Press and The New Zealand Herald for publishing the name of a man claiming refugee status (Case 984, June 2004). The complaints raised questions of statutory interpretation.

The claimant had previously been identified by Winston Peters in the House in the course of a Parliamentary debate. A suppression order of the claimant's identity was made when he appeared in the Manukau District Court on 19 November 2003. By that time both newspapers had published reports of the parliamentary debate which included his name. On the same day as the suppression order was made, there was a further debate in the House when Mr Peters again repeated the claimant's name. The following day The New Zealand Herald published the claimant's name in the course of reporting the 19 November parliamentary debate, and in a separate part of the same edition, a report of the Court proceedings and that the suppression order had been made.

The NZIS claimed that such publication was in breach of the claimant's rights to confidentiality and was prohibited by s129T(5) of the Act. It also claimed The New Zealand Herald was in contempt of Court in publishing the claimant's name after a court order had prohibited publication.

Section 129T of the Act provides that confidentiality as to the identity of the claimant and particulars of the case must be maintained at all times by the NZIS, refugee status officers and others involved in the administration of the Act; and that any person who, without reasonable excuse, publishes information in contravention of the section, commits an offence.

As the complaint involved a question of statutory interpretation, the Press Council sought the opinion of Mr W.M. Wilson QC. In some circumstances it will be prudent for publishers to obtain their own legal advice regarding responses to the Press Council. In this case, however, Mr Wilson's advice was that the relevant section of the Act only imposes prohibition against disclosure of a person's name by those explicitly noted in the section, and does not impose a blanket prohibition.

The Press Council's decision

The Press Council held accordingly that the newspapers did not come within the specified categories in section 129T of the Act. The Council still had to decide, under subsection (5) of that section, whether the newspapers "had a reasonable excuse" for publishing the name. Mr Wilson QC considered this was for the Council to decide, but noted that, as a matter of law an accurate report of Parliamentary proceedings could constitute a "reasonable excuse" for the purposes of s129T (5). The Council agreed and held that no breach was committed in publishing the name.

The Council observed that the contempt of Court issue, of publishing the name following a Court order, was somewhat more complex. Although, the NZIS had asked the Solicitor-General to prosecute for the alleged contempt of Court, the Council stated in its judgment, "Legal advice is that in such circumstances the reporting of Mr Peter's comments amount to a prima facie case of contempt", and, "The Crown Law Office have advised that contempt prosecutions are rare and reserved for the most serious of breaches" , and "In the circumstances they have advised that they do not intend to proceed with prosecution in this case."

Mr Wilson QC had confirmed the law is uncertain as to how any conflict between the legislature and the Courts is to be resolved in a situation where there is an accurate publication of what was said in Parliament which could otherwise amount to a contempt of Court. The Council, citing Burrows and Cheer's Media Law in New Zealand, noted that "A matter yet to be determined is the effect of parliamentary privilege on name suppression orders".