The criminal courts
How criminal cases begin: Pleading guilty/not guilty, bail, and name suppression
Name suppression
What is name suppression?
Criminal Procedure Act 2011, s 200
Name suppression is where a court makes an order that your name and any details that may identify you cannot be published. For example, your name cannot be published in a newspaper article about the case – however, in some cases it can be difficult to get articles on the internet taken down.
Criminal Procedure Act 2011, s 196
Note: Criminal case hearings are open to the public, except in special cases. Unless the court makes an order for name suppression, there is generally nothing to prevent the media from reporting your name, occupation and the charges you are facing.
When is name suppression available?
Criminal Procedure Act 2011, ss 200-204
Name suppression is available in the following situations:
- for victims and defendants in specific sexual cases, the aim being to protect the victim
- for children under 18 who are complainants or witnesses in criminal proceedings
- where specifically stated in a law – for example, section 438 of the Oranga Tamariki Act 1989 restricts publication of any proceedings of the Youth Court except with the permission of the court
- for defendants and any other people connected to the court case (for example, witnesses, victims), at the discretion of the court, subject to certain considerations.
What factors are relevant in deciding whether to grant name suppression?
Criminal Procedure Act 2011, ss 200-204
If you’re charged in the criminal courts, you can apply for name suppression. The judge can order this if they’re satisfied that publishing your name would be likely to have one of the following effects:
- cause “extreme hardship” to you, your family or others connected to you
- put suspicion on someone else so that they’re caused “undue hardship”
- cause undue hardship to a victim
- create a real risk of you not getting a fair trial (for example, if your name is published it might influence potential jurors)
- put someone in danger
- lead to someone else who has name suppression being identified
- interfere with the operation of the law (prejudice the maintenance of the law) or national security or defence.
Criminal Procedure Act 2011, s 200(3)
Note: The fact that a defendant is well-known does not necessarily mean they will be eligible for name suppression on the basis that they would suffer extreme hardship.
Example: What does extreme hardship mean?
Case: Robertson v Police [2015] NZCA 7
An employee of two community organisations had stolen a substantial sum of money from her employers. She argued that publishing her name would endanger her safety and cause extreme hardship to her, her family and her employer. She claimed she would lose her job if her name was published. The Court of Appeal did not accept this argument. It said that “extreme hardship” is a very high test to satisfy – hardship on its own means severe suffering, so extreme hardship must be something beyond the usual hardship and embarrassment associated with the consequences of publication.
Example: Extreme hardship and social media
A 22 year-old man admitted two charges of indecent assault after events at a political party’s summer camp. He was discharged without conviction. He argued for name suppression and the case went to the Court of Appeal. His lawyer argued that based on his age, mental health and future job prospects, that he and his family would suffer extreme hardship if his name was made public.
The Court of Appeal focused on the potential hardship the young man might face if he was named on social media. The court found that he could be subjected to condemnation or trolling on social media, if his name was released, because of the political context of the events and the level of public interest.
The court said that, on social media, there is no code of ethics, no complaints procedure and no way of controlling posts, unlike mainstream media. There was no reasonable expectation that the reporting on social media would be fair or accurate. While the young man could change his name or go offline, the court found that the toxic bullying that happens on social media was the main reason why it would be unfair and amount to extreme hardship to make his name public. Accordingly, the Court of Appeal made an order for permanent name suppression.
Can a person appeal a decision to refuse name suppression?
Criminal Procedure Act 2011, ss 283-286
If the District Court refuses to grant name suppression, you can appeal to the High Court (or to a District Court Judge if the decision was made by Community Magistrates or Justices of the Peace). You have 20 working days (4 weeks) to appeal. If you satisfy the court that you are going to appeal, that court must grant temporary (“interim”) suppression for that 20-day appeal period. When you do file an appeal, the suppression continues until the appeal is decided.
Can name suppression be enforced overseas?
No – if news outlets overseas publish a story about a case, there is no way of enforcing a name suppression order.
Order to clear the court
Criminal Procedure Act 2011, s 197
The court has the power to make an order to clear the court (where everyone but the parties leave the court) and forbid any reporting of proceedings (in newspapers or other media). This only happens in certain limited circumstances when it is necessary and when a suppression order would not be enough. The order can be made to avoid any of the following:
- undue disruption of the proceedings – for example, the court case could be disrupted because of the high profile of the defendant
- risking the security or defence of New Zealand
- a real risk of making the trial unfair (“prejudice”)
- putting any person in danger
- interfering with the operation of the law.
Even if the Court is cleared, and even if you have name suppression, members of the media can’t be excluded from court unless it relates to risking the security or defence of New Zealand.
If you have name suppression, the media can still report on the proceedings as long as they comply with the terms of your name suppression – for example reporting on the facts of the alleged offending – unless there is an order forbidding reporting on the court proceedings generally (discussed below).
Order forbidding reporting
Criminal Procedure Act 2011, ss 199A, 199B, 205
The court has the power to make orders suppressing the reporting of court proceedings, if the publication would be likely to:
- cause undue hardship to any victim of the offence
- create a real risk of making the trial unfair
- put any person in danger
- lead to the identification of a person whose name is suppressed
- interfere with the operation of the law or the security or defence of New Zealand.
A judge can also make a “take-down” order in relation to material already published online that includes details of previous convictions of someone charged with a further offence or offences. Such an order is usually made for the purpose of ensuring a fair trial.
