What we do in the shadows
The trial of a man accused of murdering British backpacker Grace Millane will get underway in Auckland on Monday. But the name of her alleged killer will remain secret for now because of New Zealand’s suppression laws. Edward Gay looks at the way those la
From protecting the identities of hat thieves, murderers and prominent New Zealanders, suppression laws have attracted controversy since they were first introduced almost 100 years ago.
But although New Zealand inherited much of its criminal law from the British system, name suppression is an entirely local invention, dating back to 1920 when William Massey was prime minister.
The root of suppression can be traced back to a group of well-meaning probation officers, who wanted to protect young, first-time offenders from public shame and being unable to secure a job in the future.
But the way in which the law was passed led to an outcry from the press and the law being dubbed the ‘‘hush-hush policy’’.
A new law was passing through Parliament in 1920, designed to give judges and magistrates an alternative sentencing option to prison.
But a clause on name suppression was added to The Probation Offenders Bill after Parliament was approached by the group of probation officers.
They asked that young, first-time offenders be eligible for name suppression. They argued that stopping the press from publishing the names of the young offenders would increase their chances of re-entering society.
A clause to that effect was included. Hansard transcripts from October of that year show there was limited debate on the bill, let alone the provision that would see the newspapers, for the first time, limited in what they could report from court.
But as the bill went through Parliament, the suppression clause was extended, making all offenders eligible.
The ability to get name suppression would not just be for the young, but crucially, all people charged with a crime, excluding murder.
Attorney-General Sir Francis Bell spoke in favour of the bill. ‘‘It should not be forgotten that there was a section of the press which lived on the blackguard stuff, which they got from the backyards of the police courts.’’
During the same parliamentary session, the House discussed the price of butter. One member also raised concerns about Indian workers being employed on a roadwork in the Wairarapa and whether they should be paid the same rate as ‘‘white men’’.
Massey University journalism tutor Fran Tyler was once a court reporter for The Dominion Post newspaper. She’s currently working on a PhD.
Tyler says there was little time for public consultation on the bill. The press were surprised and outraged by a law change seen as a serious interference in their domain.
She says that before 1920, newspaper editors would decide whether a person was worthy of having their name left out of a report. Often that involved the person or their parent turning up to the newspaper’s office and pleading their case personally with the editor.
Tyler says she’s aware of one editor who would suppress the names of those charged with public drunkenness or those under the age of 15. Everyone else was named.
‘‘Reading through the editorials, they were quite happy to be the guardians, they felt it was their moral duty and their right to do this.’’
But the new law meant judges and magistrates, not editors, would make the final determination on whether a defendant was named.
The New Zealand Times editorial of October 22, 1920, warned its readers that ‘‘a serious blow is about to be struck at the administration of justice’’.
It said the public could be led to believe there was one law for the rich and another for the poor.
‘‘In permitting and protecting publication, the law does not pander to curiosity or the love of sensation; the law permits because the light of day is the best defence of the administration of the law against malpractice, and also the best safeguard of the public confidence in the administration.’’
The newspaper warned that without the deterrent of offenders being named in the press, crime would be encouraged.
And on December 29, 1920, the Poverty Bay
Herald carried a report of what is possibly the first case featuring name suppression.
The pair, a mother and daughter, stole a hat from a shop in Christchurch by simply walking out of the door without paying.
They had the audacity to repeat the crime three weeks later.
Their lawyer, W.J. Hunter, appealed to Magistrate S.E. McCarthy to keep the pair from going to prison. ‘‘The woman’s husband is a respectable working man. The daughter is a typist in the city.’’
In granting suppression, Magistrate McCarthy is quoted as saying: ‘‘I think the request is a reasonable one in this case. Of course, if they come before the court again, they will receive the publicity.’’
Tyler says the press ‘‘made a lot of noise’’ about the law change for the next 15 years.
A search of the National Library’s Papers Past database gives a flavour of the frustration that poured forth from newspapers around the country.
In December 1926, The Wairarapa Times carried a report of a 20-year-old appearing at the Auckland Magistrates Court, charged with stealing a telescope.
Emblazoned with the headline ‘‘Hush Hush Policy … Publicity A Great Deterrent’’, the report quoted the man’s lawyer as saying his client ‘‘came of respectable parents’’ and had never been in trouble before.
But Magistrate W.R. McKean was not moved.
‘‘The law does not pander to curiosity or the love of sensation; the law permits because the light of day is the best defence of the administration of the law against malpractice.’’
New Zealand Times editorial October 22, 1920
‘‘Accused is old enough to know better. I am not prepared to lay any rule for the suppression of names ...
‘‘There is no doubt that publicity acts as a greater deterrent than any fine I could inflict. Another thing about the suppression of names is that it often causes great injustice to innocent persons.’’
The magistrate went on to recount the story of a woman who was given name suppression after being caught shoplifting.
‘‘Since then it has come to the knowledge of this court that a well-known solicitor in Auckland, with a name similar to that of the accused woman, was rumoured to be the woman’s husband and it has been alleged that he used his influence with the court, causing the name of the shoplifter to be suppressed.’’
Magistrate McKean assured everyone that was not the case.
Tyler says the 1920 suppression law provided no legal test for judges and magistrates to apply to cases. That caused widespread disagreement and inconsistencies.
Some judges and magistrates refused to grant suppression orders at all, while others were far more willing.
‘‘It opened the floodgates,’’ Tyler says. ‘‘Hundreds went to court and asked for suppression. And because there were no guidelines provided [by Parliament] it was handed out willynilly.’’
Tyler says there are also cases of defendants with previous convictions being granted name suppression, in direct contravention to the act.
‘‘So there’s a bit of a question about how it ended up being part of our law. Despite a massive outcry, it remained there.’’
There was another law change 10 years later, in 1930, which introduced a penalty for breaches. Anyone who breached a suppression order was guilty of contempt of court and liable for a fine of up to £100, a lot of money in those days.
The law underwent several amendments over the decades, but in 1975, there was a period of 10 months when everyone who appeared in court was automatically granted name suppression, unless and until they were found guilty.
Similar to the model in Germany, it was introduced under the Labour Government of Bill Rowling and was vehemently opposed by the National Party.
While it was in place, a Labour MP was charged with molesting two boys after allegedly inviting them up to his hotel room for a drink.
Nigel Hampton, QC, was the MP’s lawyer. ‘‘There was a rash of various politicians, mainly of the Labour hue, going to the media and saying: ‘It’s not me’.’’
The case went to a depositions hearing and the charges were thrown out.
Hampton says his client, the MP for Island Bay, Gerald O’Brien, waived his right to name suppression at his first court appearance.
Months later, Labour was defeated at the polls by Muldoon’s National Party and the law was repealed.
But Hampton wonders whether the law would have remained in place, had O’Brien not been charged.
‘‘I think it was a factor and it may have been in some politicians’ minds, a quite compelling factor. It was an interesting experience to live through.’’
He says the suppression law was not in place long enough to be properly assessed.
‘‘It was a worthwhile social experiment.’’ Nowadays, New Zealand has a much more open approach that sees suppression, in theory, granted only if naming the defendant could risk a fair trial, or could cause the defendant ‘‘extreme hardship’’.
The Court of Appeal has summarised suppression law as reflecting ‘‘... the longstanding presumption in favour of open reporting of proceedings in court, which is based on two fundamental principles of our constitutional order, open justice and freedom of expression.’’
In a recent High Court decision relating to a high-profile sportsman, Justice Mathew Downs gave seven reasons why he would not grant name suppression.
‘‘A high public interest attaches to the open reporting of criminal trials, especially for serious criminal offending.’’
He then pointed to Lord Steyn’s comments made during a 2005 appeal to the British House of Lords, the highest court in the United Kingdom.
Lord Steyn said an open and transparent justice system subjects the judge, lawyers, accused and witnesses to the scrutiny of the public.
‘‘The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction.
‘‘Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.’’
The quote from Lord Steyn could just have easily come from Magistrate McKean, sitting in the Auckland Magistrates Court in 1920.
‘‘A high public interest attaches to the open reporting of criminal trials, especially for serious criminal offending.’’
Justice Mathew Downs, right