THREE KEY FACTS
Courts can order the suppression of a defendant’s name and all identifying details. Judges are also able to suppress the identity of witnesses, victims and persons who are connected to people involved in court proceedings.
Rapid technology change has created challenges for making suppression orders effective.
Emma Priest is a criminal defence lawyer based in Auckland who previously worked as a Crown prosecutor.
OPINION
One of the key reasons that defendants seek name suppression in New Zealand is because of the vitriol and hate directed at them by members of the public.
This is inevitably on social media but also can be directed to them personally, their families, their friends and employers. It is personal. It is threatening. They genuinely fear for their safety.
It occurred to me that New Zealand culture includes those who publicly vilify offenders. Offenders are not protected by the law in the same way that innocent victims are. This offends the rule of law.
The rule of law, simply put, is that the law applies to everyone equally, without fear or favour. Once a society starts deciding who does and does not deserve the protection of the law, we risk eroding rights entirely.
New Zealand is a rights-focused society. Yet with the expansion of social media has come a corresponding decrease in the belief that everyone deserves the protection of the law. If hateful criminal acts are directed at those who have committed crimes, this cannot give those offenders immunity from prosecution.
Except that, in practice, it appears it does.
A man who spray-painted cruel words at the property of his ex-girlfriend is prosecuted. A person, breaching name suppression by spray-painting “rapist” on an offender’s fence, is not.
In 2022, a woman was prosecuted for sending messages to a man, inciting his suicide, was prosecuted. A hateful commenter on an offender posting the same on social media is not.
I have acted in a number of high-profile name suppression cases over the past 10 years. Comments have included threats to main, wound and kill.
There have been calls to action, suggesting that people should get together to inflict violence. This can include suggesting offenders should be hung, castrated, stabbed or raped.
Vicious messages directed at offenders saying they are worthless and using expletives and hateful words are commonplace. There are calls for suicide. I have had clients attempt suicide as a result of breaches of publication.
Intimidating direct messages are sent to clients, as well as public condemnation on social media. They can be one-off in nature or repeated. They can be directed at the client or their family, friends or lawyers. I, too, have been subject to hateful contact and have written about that in the past.
It is not unusual for offenders to be confronted or threatened in public or their homes or cars damaged. Bricks are thrown through windows, people are accosted and threatened.
All of these actions are crimes in New Zealand. They can, and should, be prosecuted under the Crimes Act, the Summary Offences Act and the Harmful Digital Communication Act. If the complainant was an “innocent party”, there is no doubt that a police investigation and prosecution would follow. The failure to treat all crimes according to the same laws infringes on the rule of law.
If people would engage with the issues in criminal justice, rather than cross the line into criminal culpability to express their dissent, I believe the need for name suppression would be rare.
The frightening and threatening nature of commentary online often forms the basis for name suppression in the first place. That fact that members of the public feel justified to break the law is an indictment on New Zealand society. The police need to look seriously at the double standard.
Clients who are young or vulnerable have less ability to tolerate being subjected to public condemnation at the extreme end we see in New Zealand. Often the basis of our applications is the extreme hardship likely to flow from publication because of disability and mental health.
Another common complaint of the ill-informed keyboard warrior is that name suppression is reserved for the rich and famous. Most of my suppression work is for those who are legally aided. They are young, vulnerable or disadvantaged. This misconception fosters contempt and prejudice.
Rather than criticise the use of name suppression, while baying for blood or taking the moral high ground while breaking the law themselves, people could reflect on their own behaviour and the harm they cause.
Two wrongs do not make a right. Once the public obey the law, then perhaps the principles of open justice can trump the need for protection from the hypocritical masses.