Suppression orders — balancing individual and public interests

By Judge Sanjay Patel

The public has a right to know what happens in our courts. In most circumstances, court hearings are open to the public and the media have a right to publish and comment on what happens.

Judge Patel

This is known as open justice — the principle that justice must be seen to be done.  It allows the public to scrutinise what happens in our courts. It maintains the public’s confidence in our justice system.  A justice system that operated entirely behind closed doors would not have the public’s confidence.

However, for good reason, open justice has limits. The public’s “right to know” needs to be balanced against other interests:  of defendants, witnesses, victims and children, particularly if they are vulnerable or the victims of sexual offending, as well as wider interests including ensuring that trials are fair for everyone involved.

The court can protect such interests by making suppression orders in certain circumstances. For example, a court can order the suppression of a defendant’s name and all identifying details.  But clear grounds need to exist. These include that publication would be likely to cause extreme hardship to the defendant or a person connected with the defendant, cast suspicion on another person, cause undue hardship for a victim, create a real risk of an unfair trial or endanger someone’s safety.  

Often, if certain criteria are met, name suppression is granted temporarily and parties and media are given opportunity to argue whether name suppression should be granted permanently.

Even if grounds for suppression are established, the court can still decline to make a suppression order having regard to issues including the circumstances of the defendant, whether the defendant has been convicted, the seriousness of the offending, the views of the victim and the public interest in knowing the character of the defendant. Often name suppression may only last the duration of the trial and be lifted when there is a conviction.

The fact that a person is well known is not, of itself, a ground for the making of a suppression order. However, the fact a person is well known might be grounds for arguing they will suffer extreme hardship if their name were to be published prior to trial.

“The fact that a person is well known is not, of itself, a ground for the making of a suppression order."

Courts are also able to supress the identity of witnesses, victims and persons who are connected to people involved in court proceedings. Automatic name suppression applies to protect witnesses and complainants under the age of 18 and of defendants and complainants where certain sexual offences are alleged. These are Parliament’s statutory prohibitions over which judges have no discretion.

Rapid technology change has created challenges for making suppression orders effective. In the past, the public were mainly reliant on television, radio and newspapers for court news. Once published or broadcast it was difficult to retrieve the information again quickly. But in the Internet age, court news remains available indefinitely through a quick and easy search.

This can have a considerable impact on people involved in court proceedings. An Internet search might reveal that a person was charged with an offence even though later found not guilty. Claims or information prejudicial to a party getting a fair trial might be posted on a blog.

The court needs to be increasingly flexible and creative in the use and timing of suppression orders to ensure people’s interests are adequately protected, and to ensure breaches of suppression orders are adequately policed.

At the same time, judges are always mindful of the public and media’s right to know what happens in our courts before suppression orders are made.