Jo Knowlsley's excellent Herald article in May this year reviewed cases where attempts to gain name suppression backfired. They attracted more damaging attention than without the attempt to gain suppression.

Now we have another example, with a Court of Appeal decision that could be a final straw. The decision on 20 July has so far attracted only desultory attention but  I predict that within a week or two the names of the offender and his family will be known to many more than would ever had been interested without the suppression orders.

Currently, section 140(1) of the Criminal Justice Act 1985 gives the Court broad discretion for granting name suppression, but without criteria. Minister Power has a Bill awaiting passage, which purports to restrict name suppression.

It may do little more than savagely increase sentences for the brave characters who let us know the truth despite suppression orders. Under the Criminal Procedure (Reform and Modernisation) Bill 2010, as reported back by the Select Committee (Part 5 subpart 3), the Court will remain able to prohibit the publication of a defendant’s name and details likely to lead to their identification where it would be likely to:

1. Cause extreme hardship to the accused or people connected to the accused.
2. Cast suspicion on another person that may cause undue hardship to that person.
3. Cause undue hardship to any victim.
4. Create a real risk of prejudice to a fair trial.
5. Endanger the safety of any person.
6. Identify another person whose name is suppressed by order or by law (eg a victim).
7. Prejudice the maintenance of law, including the prevention, investigation, and detection of offences.
8. Prejudice the security or defence of New Zealand.

The Court of Appeal's latest decision looks like the start of a bizarre line of reasoning to exploit categories 1, 2 and 7.

They've decided to suppress a name to protect the reputation for integrity of the offender's' former wife (apart 11 years) and adult children, because they have jobs in the justice sector. The judgment talks of "incalculable hardship" should the truth out, and the need for confidence in the integrity of  court staff. It seems not to have occurred to the judges that none of us can have confidence in the integrity of anyone whose reputation depends on not being allowed to know the truth about them or their relatives.  The judgment reasoning is an excellent reason not to trust the instincts of the judges about integrity.

Are the  judges consciously setting out to make sure the pending law changes mean little?  Perhaps that is what the Law Commission and the Minister expected. They may have meant to look as if they were responding to public outrage, but really prefer the status quo. .

Because instead of a simple reform to restore the openness of our courts and freedom of speech, by ending name suppression with only two exceptions, the complicated new provisions could let the Courts continue as they do now. The exceptions should be only at the uncoerced request of a victim who would otherwise be further hurt, and to protect the conduct of some other case still continuing.

The Select Committee did not act on the Law Society's view that:

" the circumstances listed in the Bill for making suppression orders are wide. There could be a risk that the principles of open justice and freedom of expression are not given appropriate weight in determining whether name suppression should be granted.

“The process would be improved by including a requirement for the court to consider the principles of open justice and freedom of expression, to ensure that these values are given appropriate weight,” Mr Krebs says  except at the un-coerced request of the victim" 

The real losers when free speech is subordinated to the preference of the powerful to keep information from us, are us the people.  The Court of Appeal do not even discuss freedom of expression under the NZ Bill of Rights Act, despite citing passages of the judgment of the court below that mentioned it. The Appeal  Court focus was on the costs of publication to the convict's former wife, adult children, father and grandson. .

Who will not be able to dredge up some blameless, deeply ashamed and sensitively engaged relatives? It is impossible from the judgment to know where the boundary will be set. The law changes will play into the hands of people who can summon devastated relatives. Does this mean that we'll no longer be allowed to know of corrupt cops for example, if they have relatives who remain in the Force, or in Corrections, or Justice? Precisely when transparency is most needed the judges' instinct is to tell us we'll feel better about the system if we are not allowed to know.

The Bill of Rights does not give us a right of appeal. We depend for deterrence and for knowing who we should trust, on both the fact and the likelihood of disclosure of wrongdoing. 

 Nor did the judges seem to feel the need for any external evidence that the unfortunate relationship of the relatives supporting the application for suppression (because of their reputations) are not already known in their communities. I'm told that five minutes with the judgment, and Google, will deliver the name of the convict.

And how do the judges know that there will not be more sympathy than blame for those with the misfortune  to have a  paedophile porn relative.  From growing up in provincial New Zealand, I doubt that name suppression very often keeps information from anyone who has enough contact with the ‘beneficiary’ to matter to the beneficiary.

These suppression orders may be largely symbolic assertions of power, though none the less dangerous for that.  They will not achieve their stated objective of stopping knowledge in the community that matters most. They  already know.

We cannot expect lawyers to make the legal system self-cleansing. An external reality will someday end this patronising use of judicial power.  It will end when it plainly will not work, and it is too costly for the judges to keep trying. Probably that will come from something like a specialised wiki hosted offshore where people can look up truths that are suppressed here.