Jillaine Heather
Trust in public institutions continues to decline and frankly I’m not sure we can be surprised.
The list of cases before the courts with suppressed details seems to grow by the week, with liberal helpings of name suppression. The media face restrictions on what they can report. And yet the information the courts are trying to contain spreads across social media within hours.
The system is failing on its own terms.
Open justice depends on transparency. How can the public hold authorities accountable if they do not know what’s going on? How can Kiwis make their own judgments on people and institutions if they do not know the full picture?
Kiwis have a right to know what is happening in their communities and who poses a risk to them. Without that knowledge, accountability is impossible.
Some examples
The pattern of recent cases should alarm every New Zealander.
Last week, reports confirmed that the teenager responsible for the violent death of 25-year-old security officer Ramandeep Singh has been granted permanent name suppression.
The public will never know who committed this brutal, unprovoked attack.
Singh’s parents watched the court proceedings via video link from India. They now return to their lives knowing the person responsible for their son’s death will remain forever anonymous.
Consider Jevon McSkimming, the former Deputy Police Commissioner, who was initially shielded by a ‘super-injunction’ so secretive that even its existence was suppressed.
He has since pleaded guilty to possessing child exploitation and bestiality material on his work devices. But before that came to light, police prosecuted a woman who accused him of sexual abuse, silencing her with suppression orders while ignoring her complaints, all to protect his shot at the top job.
That’s suppression weaponised, and a court process turned into a cover-up.
A member of a wealthy family was convicted of possessing more than 11,000 files of extreme child sexual abuse material. He received permanent name suppression for himself, his family and their high-profile company.
Meanwhile, Storm Constable-Carter, a 22-year-old in Nelson who pleaded guilty to 50 charges involving more than 61,000 files and who created and distributed the material, was named publicly.
What distinguishes the two cases? Wealth? Connections? We cannot know, because the reasoning is suppressed.
A 29-year-old man who allegedly smashed a window at Winston Peters’ Auckland home with a crowbar was granted interim name suppression. It’s alleged he committed a crime against a public figure at a public protest. Why does he get to dodge accountability?
The Tom Phillips case exposed the futility of suppression in the digital age. An injunction covering certain details had the immediate and predictable Streisand effect: rumours spread across TikTok, Facebook and Instagram within hours.
Journalists, lawyers and seemingly half the country appear to know what the media could allude to but not report. When suppression orders can be circumvented by anyone with a smartphone, we must ask what purpose they truly serve.
The Free Speech Union previously criticised the Human Rights Review Tribunal for banning “non-accredited” journalists from the press bench and prohibiting note-taking in the public gallery. A body charged with defending human rights applied criminal procedure rules to prevent scrutiny of a civil hearing.
Trust erodes, accountability collapses
Parliament has recognised that reform is needed. The Victims of Sexual Violence Act, which came into force in late October, now gives victims the final say on whether their offender receives permanent name suppression.
But it addresses only one aspect of a much larger problem.
Open justice is a constitutional principle. Section 25 of the Bill of Rights Act affirms everyone’s right to a fair and public hearing. The Criminal Procedure Act 2011 requires “extreme hardship” or safety concerns for name suppression to be granted.
These thresholds exist precisely because suppression is meant to be exceptional, not routine – something beyond the usual hardship and shame that comes with public exposure.
Yet secrecy feels as if it has become the norm. The balance is off.
Name suppression is not a neutral act. It is a speech restriction. Every time a court stretches suppression further, trust in the justice system erodes. And when trust erodes, accountability collapses.
A free society is not one that is kept in the dark. At some point – and I hope soon – we need to decide if we are still a nation committed to open justice.
Jillaine Heather is chief executive of the Free Speech Union
First, what is allegedly ‘the norm’, or what “feels” to be the norm, which presumably means an impression based on the author’s digestion or something similar, which is supported by the author’s reference to specific examples rather than reliable observations or statistics, overlooks that the norm has been and remains open justice.
Secondly, there is the author’s radical vision of open justice and whether it squares with the civilising norms of the modern open society.
An open society incorporates a vision of justice for all, based on an array of often contesting civil rights, not just on the playing out of a radical vision of one right, here free speech.
On the first issue, the only lack of balance lies in the author’s cherry-picking of notable cases. Nearly all court proceedings are mundane, involving ‘nobodies’, and therefore hold little interest for reporters, who can read all of the names of those appearing in court, which scroll down lists shown on monitors in public areas of courthouses, in every district, every week, just as can any interested member of the public; the Ministry of Justice moreover publishes daily courts lists. Reporters are free to sit in court and report on most trials, and watch an array of defendants who trudge in and out of courtrooms charged with the full panoply of offences, or sit in on long-winded brief reading and submissions in civil cases. Moreover, the vast bulk of court judgments are publicly accessible.
Only rarely have I seen a reporter turn up to the Court of Appeal in a run of the mill criminal or civil appeal, which accounts for the bulk of the 130 or so appeals I have appeared in during my career. That’s presumably because the salacious, the notable and the famous are not the subject of the appeal: just boring points of law, involving ‘nobodies’, which are subjects upon which gouls and the bored cannot feast. For those who look for salacious content, the bulk of publicly visible litigation holds about as much attraction as does watching reruns of pre-80s Coronation Street (apologies to fans of Stan and Hilda Ogden, Ena Sharples, and wearers of hair nets everywhere).
On the second issue, what is seemingly being complained about is that we have a justice system that makes accommodation for a range of important civil rights, i.e., other than solely catering to a radical vision of free speech; particularly, there is the right to a fair trial and the right to be presumed innocent until proven guilty.
Until one has personally witnessed the destruction wrought on the lives of the innocent caused by the premature, one-sided reporting and publication of false or misleading allegations of criminality or immoral conduct, advanced by trusted institutions such as the police or Crown, in some cases based largely on the say-so of sometimes biased, dishonest or unreliable witnesses, can one appreciate the social cost of an unrestrained vision of open justice.
The FSU’s position is a call for a return to the ‘justice’ of the town square, or the stockade; unrestrained reporting of flimsy or untested allegations can lead to employers or landlords casting out an accused, ruining their lives, and fracturing their families, for which a later acquittal, often barely noticed, is cold comfort; it is a call for screaming hicks who can line up outside courthouses to shout obscenities at an accused before a fair trial has occurred and the facts are established by an independent court.
It is not a call for a modern justice system.
Judges have a statutory power to protect the accused persons and the innocent, including those presumed innocent by the law, when publication of their names will likely cause extreme hardship to them or undue hardship to, sometimes vulnerable, others. The law should not be changed. Because justice is a process, not just a series of pictures at selected intervals, with the last frames sometimes omitted or if published barely noticed.
Those like the FSU who lobby for change to a radical vision of ‘open justice’ focus solely on the notion of openness, and read down the broader concept of justice; but as Karl Popper observed, the open society does not mean a free for all.