Name suppression a careful balancing process
OPEN JUSTICE is a fundamental principle of our system of justice.
Denunciation of offending and deterring others are important objectives achieved through open justice, which are not readily displaced. Name suppression might be seen as a tension to this principle. Thus courts grant suppression only sparingly and only in cases where some other factor takes on such significance that it displaces the principle.
In March 2012 Parliament raised the already high threshold of displacement even higher.
By its very nature, name suppression denies the public opportunity to comment on the reasons for which it was granted. Often judges know facts which the public generally do not and cannot know. Without that knowledge, name suppression decisions may appear difficult to justify.
The decision addressed in Colin Espiner’s opinion piece in the Sunday Star-Times on July 28 is clearly one of those instances. The offender was granted name suppression because his wife would suffer ‘‘extreme hardship’’ if his name were made public. As the judge explained in the decision, the hardship she would suffer went beyond mere embarrassment at her husband’s activities.
The decision to grant name suppression is reached only after a careful balancing process, with the principle of open justice on one hand, and the rights of offenders and others on the other. Relevant contextual factors include the seriousness of the offending, the stage of proceedings, and personal circumstances of the offender, victims, or even witnesses. While name suppression may be justified as an interim measure, it is less common for it to be granted after proceedings have concluded.
To attain the threshold of ‘‘extreme hardship’’ there must be some quite excessive consequence to the offender or other person which is out of all proportion to the public’s interest in open justice. The more serious the offending the higher the threshold.
As the judge explained in the decision, the hardship she would suffer went beyond mere embarrassment at her husband’s activities
Being well known or famous will not, in itself, result in extreme hardship. Devastating personal, professional or financial consequences may.
Whilst the law must evolve with the changing expectations and values of modern society, it is Parliament which has chosen the appropriate balance between open justice and competing values in light of modern technological advances. The balance is reflected in the ‘‘extreme hardship’’ test.
The role of the courts is to apply the law as it currently stands. Where that threshold is attained, the courts have a responsibility to consider whether name suppression is required to avoid injustice. The starting point is open justice which has a balancing process applied when the competing rights of the individual and the public come into conflict.
In the vast majority of cases, it is the public’s right to open justice which carries the greater weight.