Thursday, 19 November 2009

name suppression

there's been a bit of talk about the law commissions report that came out a few days ago, making recommendations about suppression of names and evidence (this is the html version, as i couldn't get the pdf to work for me). other bloggers have covered the issues around suppression of information on the internet and ramifications if websites are blocked.

the bit that interests me is chapter 3 of the report, dealing with the suppression of names of the accused or convicted persons. i'm sure i heared hon simon power saying something along the lines that there would be tighter rules around suppression of names for celebrities, so that celebrities were treated like everyone else.

of course that appeals to my egalitarian nature. but i find that i actually agree with justice baragwanath, as quoted in paragraph 3.7:

In the recent decision of R v B,53 which again involved a question of pre-trial suppression, Baragwanath J described the presumption of innocence and the adverse consequences of publication of what may be an unjustified charge as being among factors to be weighed in making a decision on suppression. He stated that the presumption of innocence means that if there is significant reason to consider that the defendant may be unfairly prejudiced by a refusal of orders under sections 138 or 140, the onus will pass to the prosecution to show why orders should not be made. He described the process as dynamic; the position may change as the pre-trial processes take place. The principles that apply may differ when the defence is able to present its side – what may be unfair publicity at the first stage may be necessary at the second to permit proper reporting of the trial, and may be fully justified by the verdict that marks the third stage.

i actually think that name suppression, particularly in cases involving celebrities, should happen unless there is a conviction. partly it's because i'm totally opposed to trial by media, and think that the breathless reporting and inordinate focus on the case doesn't serve justice. but there is also the fact that the victim of the crime is often subject to an unfair amount of scrutiny and negative comments, which can amount to a further victimisation. this particularly occurs when the celebrity can afford expensive PR firms, and may have friends/contacts in the media who try to discredit the victim in any way possible. more than that, media or entertainment organisations will be keen to protect their brand and protect their income stream, so will also do their best to discredit the victim.

i do understand the notion of open justice, and justice being seen to be done. however, i think the media scrutiny acts as a deterrent for victims pressing charges.

however, once conviction is secured (or even a discharge without conviction), i think names suppression should only be granted in very restricted circumstances. the "protection of reputation" argument doesn't wash with me, nor the notion that celebrities have more to lose from exposure than other people. i think any person has much to lose in terms of future employment opportunities and the ability to carry on with their lives.

once a conviction has been obtained, the victim is as least protected by the fact of that conviction and the evidence provided in court. there is still likely to be significant attempts of discrediting the victim, but these will have less weight given the jury/judge have believed the victim. the only reasons that sits well with me for name suppression after conviction is if the victim does not want to be identified and/or protection of family members of the accused.

1 comment:

Flynn the Cat said...

More to lose, but they all end up in the same place.