Name suppression dropping

December 5th, 2014 at 2:00 pm by David Farrar

Stuff reports:

But figures issued under the Official Information Act show it is already becoming rarer for the courts to grant permanent name suppression.

Canterbury University media law expert Professor Ursula Cheer said her students had researched the figures this year. They found 880 people were granted permanent name suppression in 2009 – of whom 218 were convicted – and the figure dropped steadily each year, reaching 354 in 2012, including 132 convicted offenders.

That’s a pleasing trend.

I have less of an issue with name suppression for people not convicted, but permanent name suppression for someone convicted of a crime should be very rare.

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Tau in court

December 3rd, 2014 at 12:00 pm by David Farrar

Stuff reports:

Former National MP Tau Henare has appeared in court charged with breaching a name suppression order.

Henare appeared in the Waitakere District Court this morning charged with breach of suppression for allegedly naming a prominent New Zealander who was convicted of indecent assault.

The man was awarded permanent name suppression.

Outside court, Henare said New Zealand didn’t treat victims very well.

“I think the law’s an ass,” he said.

He did not enter a plea and was remanded on bail to reappear on December 16.

It is interesting that Stuff has named Tau, but the Herald has not. The Herald seems to think that naming Tau may get them in trouble, as people could then locate his social media message where he breached name suppression. I think that is being too sensitive.

Incidentally both Trevor Mallard and myself have pledged $100 to Tau’s costs, if he needs them :-)

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Suppressed name

November 18th, 2014 at 1:00 pm by David Farrar

The Herald reports:

A complaint has been lodged with police against a former politician who tweeted the name of a prominent Otago man who has permanent name suppression.

The man’s lawyer, Jonathan Eaton, QC, confirmed to the Otago Daily Times a “formal complaint was lodged with the NZ police last evening”.

That complaint related to a tweet by a former politician who named the man on Twitter.

The Herald have not named the former politician. It is not hard to guess though. I’m interested in where liability may lie if you do name the former politician who tweeted. Think through these scenarios.

  1. If I retweeted the tweet naming the prominent Otago man, then that would very likely mean I breached the supression order also
  2. If I did not retweet it, but provided a link on my blog to the tweet, would that make me liable? Probably.
  3. What if I do not link to the specific tweet, but did link to the twitter account. Would I be liable? Less clear cut.
  4. And what if I named the former politician who tweeted, but did not link to his twitter account. Is simply naming him something that could make me liable? I would hope not, but like the Herald won’t risk it.

The former politician still has the tweets up, and has repeated the name in a subsequent tweet, so I don’t think he cares if he gets prosecuted. Hard to imagine he won’t be, as the breach is deliberate and sustained. I have sympathy for what he did as I think name suppression should not have been granted, but think it is unwise for anyone to deliberately breach a legal order.

Any commenter who names (or hints at identity) of the tweeter (or the supressed) will get a strike.

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Why does a convicted killer get name suppression?

September 18th, 2014 at 12:00 pm by David Farrar

The Herald reports:

An Auckland grandmother who beat a 77-year-old man unconscious before setting him on fire will spend at least the next 15 years in prison.

The 48-year-old woman, whose name is suppressed, previously admitted the murder of Peter Lance Dixon, who was found dead in his South Auckland home after a fire in February 2012.

The High Court at Auckland yesterday heard the horrifying details of the killing, which Crown prosecutor Warren Cathcart called “calculated and callous in the extreme”.

The woman, who whimpered throughout, was jailed for life and Justice Rebecca Ellis imposed a minimum non-parole period of 15 years.

She’s been convicted and sentenced. Why does she have name suppression?

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Cunliffe did know after all!!

July 24th, 2014 at 11:00 am by David Farrar

The Herald originally reported:

But the Labour leader threatens to be distracted by internal ill-discipline and criticisms over his judgment, including the holiday itself and a meeting last week with a prominent New Zealander given name suppression on charges of performing an indecent act.

Mr Cunliffe confirmed to the Herald last night that he had arranged for the person – whose case has been the topic of media coverage – to meet a Labour candidate but said he had no idea about the controversial background until yesterday.

“If I had known of the suggestion, no such meeting would have taken place.”

But Newstalk ZB reported:

Mr Cunliffe admits a prominent New Zealander’s possible sexual offending had been raised with him before he met with the man in Queenstown last week.

The Labour leader says the meeting went ahead because no proof had been supplied.

It would have taken one phone call to find out. One could have had a staffer ask the person in question, or pretty much anyone in Queenstown. But they wanted his help with the local Labour candidate, so they decided to do a don’t ask, don’t tell policy.

Now I’m not advocating the man in question should be a pariah. But this episode suggests that Cunliffe’s apology to Rape Crisis for being a man was easy words, but not action.

I mean just a few days after you make national headlines for apologising for being a man to Rape Crisis, and saying we have a rape culture in New Zealand, you go and meet a prominent New Zealander who has plead guilty in court to sexual assault but got name suppression for it. And you admit you did hear about it prior to meeting him, but ignored it.

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Why not name the country?

June 30th, 2014 at 7:00 am by David Farrar

The Herald reports:

A diplomat accused of a sex crime was ordered out of New Zealand after invoking diplomatic immunity.

Despite attempts by the New Zealand government to haul the man before the courts, his home country refused to waive his immunity.

Under the Vienna Convention, diplomats cannot be arrested or detained in foreign countries.

The man, who was employed at a high commission in Wellington, was arrested by police after an attack on a 21-year-old in her Wellington home last month. He had followed the woman home.

Police told the Herald on Sunday they had sufficient evidence to charge him with assault with intent to rape, but had let him go as he was not able to be prosecuted under New Zealand law. He had also been charged with burglary.

It is understood the man — who was aged in his 30s and had interim name suppression — refused to give a DNA sample.

He had full diplomatic immunity, and left New Zealand.

As he will not be facing trial, surely the name suppression should now lapse.

And is there a reason the country he represents can not be named? It is a high commission, so that narrows it down to the Commonwealth.

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Claiming sole credit

August 18th, 2013 at 9:00 am by David Farrar

The HoS editorial:

It is a small victory but an important one. Parliament’s regulations review committee has upheld our complaint against the secrecy of teachers’ disciplinary proceedings.

Except it wasn’t their complaint. It was Graeme Edgeler’s. Graeme discovered that one could complain about it to the Regulations Review Committee, write the complaint and filed it. The Herald on Sunday then jumped on board and asked if they could be joined to the complaint – something Graeme agreed to.

The HoS has run a good campaign on the issue of teacher name suppression, and I think it is a good thing they joined the complaint. But would it have hurt them to acknowledge in their editorial the person who actually did the complaint, as the news story did?

The Herald on Sunday challenged the rule because we believe, like the Law Commission among others, it is inconsistent with the principle of open justice necessary for public confidence in judicial proceedings at any level.

Again, Edgeler challenged the rule, and the HoS jumped on board. Again – that was a good thing – but just grates to see no credit given to the person who actually was responsible for the victory.

UPDATE: To clarify, the HoS has run a campaign for some time against name suppression for teachers. They also made a complaint to the Teachers Council about the Council’s own rules. So they are not Johnny come latelys on this issue. However I stand by my point that the editorial should have mentioned that the complaint to Parliament was someone else’s – as their news story did. At the end of the day it was the complaint to Parliament’s RRC which got the successful outcome.  I doubt the complaint to the Council directly was going to lead to any change.

It’s partly a cultural thing. Blogs habitually hat tip, link and credit others. Newspapers tend to do so far less often.

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Teachers Council name suppression

August 16th, 2013 at 2:00 pm by David Farrar

Graeme Edgeler complained to the Regulations Review Committee of Parliament that the rules put in place by the Teachers Council to apply blanket name suppression to all details of their disciplinary proceedings trespassed unduly on personal rights and liberties, appeared to make some unusual or unexpected use of the powers conferred by the statute under which it was made and contained matter more appropriate for parliamentary enactment. The Herald on Sunday joined his complaint.

The Committee has reported back and it is a partial victory, which pushes things in the right direction. They have resolved to recommend:

  • the New Zealand Teachers Council change rules 31, 32, and 33 to ensure the proceedings of the Teachers Council Disciplinary Tribunal are open to the public unless the Disciplinary Tribunal makes an order to the contrary 
  • the Government consider introducing amending legislation to specify, in the Education Act 1989, that the proceedings of the Teachers Council Disciplinary Tribunal are open to the public unless the Disciplinary Tribunal makes an order to the contrary on specified statutory grounds.

Their conclusions were that the rules of the Teachers Council:

  • are in accordance with the general objects and intentions of Part 10A of the Education Act 1989 (Standing Order ground 315(2)(a)); 
  • do not trespass unduly on personal rights and liberties (Standing Order ground 315(2)(b)); 
  • appear to make an unusual or unexpected use of the delegated power in section 139AJ of the Education Act 1989 (Standing Order ground 315(2)(c)); and 
  • may contain matter more appropriate for parliamentary enactment (Standing Order ground 315(2)(f)).

The two Labour MPs on the committee (Street and Dalziel) wanted to go further and find that the rules are not in accordance with the Act and do trespass on personal rights and liberties. Presumably they would have supported the Committee actually disallowing the rules, rather than just recommending they be changed.

The ball is now in the court of the Teachers Council to listen to Parliament and change their rules.

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Teacher name supression

May 19th, 2013 at 10:00 am by David Farrar

The HoS reports:

A woman who, while a teenager, was preyed upon by her physics teacher for sex during extra-curricular sailing classes is pleading with authorities to make details of the case public.

She says publishing the man’s name may encourage any other victims to come forward.

The Teachers’ Council Disciplinary Tribunal struck the teacher off and said it was in no doubt that the 18-month full sexual relationship took place in the late 1980s when the woman was aged 16.

However, the tribunal’s decision late last year was published without the teacher’s name. Chairman Kenneth Johnston rejected the woman’s application to publish it because, he said, “particular reasons” were needed to justify publication.

It is the case that has become the face of a Herald on Sunday push for more transparency of teacher disciplinary hearings.

The paper has formally applied for the case’s details to be made public and asked the council to rewrite its rules so it does not start from a point of automatic suppression.

Absolutely. Suppression should be the exception, not the rule.

For the first time, we can reveal that the victim in the test case – who the Herald on Sunday has chosen not to name – fully supports our application.

She contacted the paper in the wake of the publicity, and gave us a copy of a letter she has written to the Teachers’ Council.

It says: “Indeed, it was a newspaper article about a different teacher at another school which first prompted me to action, realising that I could have the potential to prevent further crimes being committed by the individual who targeted me, and it has always been my wish that this teacher be publicly named, to prevent his re-offending in the future.”

Publishing his name could prompt any other victims to come forward, the woman believes.

It is about preventing further victims.

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A name suppression story

April 7th, 2013 at 1:00 pm by David Farrar

A reader writes in:

The first time I became aware of the SST offender database was when we were gravely concerned about the attention and interest a 43 year old man had in an 11 year old family member. My suspicions and reasons to look for this information was based only on 2nd-hand information and hunches that something didn’t feel right.  

 His name didn’t appear on the SST offender database back then as he had name suppression for 3 prior sexual offences against children and as such this information was prohibited from being made public. Our girl was his 4th victim when he raped her before her 12th birthday and I sincerely wish this offender’s name had not been suppressed and that it had been on that database when I looked first looked as we may have averted years of trauma and heartbreak.  

 Btw. His name is now on the database and he is serving a Preventive Detention Sentence … too late for us …too late for victims that preceded

Far too many children get assaulted or raped because their offender had name suppression for previous offences. Sometimes this is necessary to prevent the identification of the previous victims, but what should be suppressed is details about their relationship to the offender, not the identity of the offender.

The Sensible Sentencing Trust has a violent offenders and sex offenders database. It is a pity they have to provide this service. I think court convictions should be listed by the Government in a searchable database – subject to the clean slate legislation, and any name suppression orders.

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The Human Wrongs Commission?

April 6th, 2013 at 11:00 am by David Farrar

Phil Kitchin at Stuff reports:

The Human Rights Commission plans to prosecute the Sensible Sentencing Trust for breaching a serial paedophile’s privacy.

I’m speechless.

It stems from the trust printing the man’s name and details of his offending on its website. The commission says this breaches his privacy because the trust does not mention that he has name suppression.

However, neither the paedophile nor the commission have been able to supply a court record to prove he has name suppression.

Which is rather important. I don’t think taking the paedophile’s word for it is a good idea.

In January, the present commission director, Robert Kee, wrote to the trust saying it had not ensured it was publishing accurate information when it put the paedophile’s convictions on its website.

Publishing the information without referring to “the fact there is a suppression order” breached the man’s privacy, Mr Kee said.

But three paragraphs later, Mr Kee said he agreed with a judge’s minute that said there is “no record on the file of a final suppression order” being made.

He said the sentencing judge’s written decision was missing, but he believed the Human Rights Review Tribunal “could find on the balance of probabilities that there was a suppression order”.

Balance of probabilities? Not good enough. If you can’t find one, there isn’t one.

On one side of the case is the taxpayer-funded Human Rights Commission, which includes the Office of Human Rights Proceedings and prosecutes cases under the Privacy Act.

On the other side is the Sensible Sentencing Trust, staffed by volunteers and funded by donations.

In the middle is the convicted paedophile, a 58-year-old Wellington man whose offending is alleged to have spanned 14 years.

He was jailed for a year in 1995 on five counts of committing indecent acts on two girls aged 10 and 14.

At the same trial he was acquitted of a further two charges of rape and four charges of indecent assault on young girls.

Twenty years earlier he was charged and acquitted in three separate rape trials.

He also has a conviction for careless driving causing death.

The man lost his job as a chief executive when members of his organisation learned of his sex offending. Documents obtained by The Dominion Post from members of the organisation said he had access to children in his work and had lied about being employed when he was in prison.

I know which side I am on. If this proceeds, I’ll be happy to solicit donations from readers for the Sensible Sentencing Trust on this issue. You don’t have to agree with everything the SST says or does to be appalled by this prosecution.

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Probably cops

March 26th, 2013 at 3:00 pm by David Farrar

Stuff reports:

A public servant has appeared in court after allegedly dragging his partner along the floor by the hair, before beating her.

The man is one of two senior Waikato public servants due in court this week charged with assault.

The cases are unconnected, with the second defendant accused of having assaulted two people – one allegedly a family member.

Extensive suppression orders prevent naming or giving details of the occupations of either of the men, who are from different Waikato towns.

I have zero information on either case, or the identity of the two men.

But the codewords used by the media are easy to decipher.

If you are a “senior public servant” and also live in a town, well 99% of the time you must be a police officer. You don’t see a lot of Ministry of Health offices in Huntly or the like!

Note again i have no actual information on the cases, and am just making an educated guess. As I don’t know the identity or occupations of either man, I can’t be breaching a suppression order.

The point I am making is that the media have effectively pointed to the occupations by using a combination of generic role and location that narrows it down.

It’s like the time I was the off the record source for a story for a newspaper in the early 1990s and they referred to me as a “Senior Young National” in Wellington. I somewhat irately pointed out to the reporter that they might as well have printed my name, date of birth and photo as the description was so obviously me!

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Go Edge

March 22nd, 2013 at 1:00 pm by David Farrar

Jody O’Callaghan at Stuff reports:

Secrecy surrounding disciplining teachers is under scrutiny by MPs, with a lawyer asking that teachers face as much transparency as doctors and lawyers.

Not unreasonable.

Wellington barrister Graeme Edgeler’s complaint about the Teachers Council’s blanket suppression on disciplinary decisions was heard by a parliamentary select committee yesterday.

Teachers Council rules state that no-one, media or otherwise, can publish details of a decision on a teacher’s bad conduct. The council argues that that avoids deterring victims, particularly children, from coming forward to give evidence.

But Mr Edgeler said the presumption should always be openness.

“These rules are wrong. It’s the Teachers Council taking upon itself something that Parliament should be doing and has done in other situations.”

The Regulations Review Committee can effectively rescind the regulation made by the Teachers Council. Hopefully the Council will amend its own rules but …

Teachers Council director Peter Lind said: “Changing the rules . . . could have the unintended consequence of people, particularly children, not coming forward to give evidence.”

Oh nonsense. You really think that the 12 year old lid won’t tell their parents about something bad a teacher did because they’re aware of the rules around name suppression that the Teachers Council has?

PPTA president Angela Roberts said the suppression of disciplinary details was to protect vulnerable victims, particularly in small communities.

Oh, yes of course it is. To protect the victims. How about you don’t name the victims, but do name the teachers.

The point Edgeler is making is that a blanket rule is wrong. Sure if the teacher is the sole teacher in a small school of 10 pupils, then you might consider name suppression is necessary to protect the victims. But you don’t need a blanket rule, such as the Council has. Suppression should be the exception – not the rule.

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A new vetting certificate needed

September 19th, 2012 at 11:00 am by David Farrar

Marty Sharpe at Stuff reports:

A recruitment agency manager says he has lost faith in criminal record checks after a loophole in the law brought him close to employing a child-sex offender.

The loophole means convictions for which name suppression is granted do not appear on a person’s criminal record unless that person requests a full record. It was brought to light this month by The Dominion Post after it revealed that a voluntary organisation in Hawke’s Bay had unknowingly taken on a man convicted of raping his daughter because his conviction was omitted from his criminal record.

In the latest case, the branch manager of a national recruitment agency requested a criminal record check from the Justice Ministry on a job applicant, and was told there was “no information held or able to be released”.

By the time the letter arrived, the applicant had already admitted he had a past conviction for sexually assaulting a minor, and was not offered the job.

The unnamed manager, who has been in the recruitment business for more than a decade, said he called the ministry and was told: “He may have been telling the truth, but we had a suppression order so could not tell you anything.”

“I said, ‘Well hang on, you’ve sent me a ministry document that makes no mention of his serious crime. I could have put him in a position with a cleaning outfit contracted to a school. I can’t see how that’s right.’

“She told me the only person who can overrule the suppression was the judge.

I’m not sure if you need a law change for this, but what may solve this issue is a certificate that does not detail what the convictions are, but states the person has convictions.

Where name suppression was granted to protect the victim (as the offender may have been a relative) should not end up creating further victims.

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Name suppression breaches in Dunedin

June 20th, 2011 at 11:00 am by David Farrar

James Meager blogged on Friday:

This blog can reveal that [deleted by DPF as post linked to has now deleted the name] was arrested last Thursday and charged with indecent assault. The charges relate to multiple occasions where [name deleted], while while under the influence of alcohol, indecently assaulted a female victim who was known to him. Particular details regarding the incidents are being withheld to protect the identity of the victim.

The name of the alleged victim is automatically supressed by statute, specifically s139 of the Criminal Justice Act.

What surprised me, was reading the comments (which are now deleted but stayed up for a fair while) in which the person charged commented and said:

In case you are curious what happened: I got drunk at my flat some time ago, and groped [name of victim]’s breast. I was too drunk to remember what happened, but when I discovered what had happened (through being told the next morning), I sent her an apology via text. As far as I was concerned, that was the end of the matter, and this person has come around on to my flat since then, with nothing untoward happening. The person then, completely out of the blue, decided to press charges. No, I have not plead guilty: having received diversion means the process does not get that far, and this does not constitute a conviction. I have complied fully with the police, and I believe (hopefully) that that is the end of the matter. So there you are: I got drunk and groped a breast, and apologised afterwards. That’s all there is to it.

I was staggered that the person charged named the victim. Not only is it illegal in itself, but it could have the Police decide not to offer diversion.

But then even more unusually, the victim commented under her own name:

I am the victim. Being drunk is no excuse. I did not press charges out of the blue but rather agonised over it for two weeks, whilst my anxiety disorder spiralled out of control and I suffered nightmares. As a friend, who I felt I had shared close times with, I was saddened and disappointed that [name deleted] was not sorry. A text is not an apology; facing your victim, accepting responsibility (not blaming the booze) and saying sorry sincerely is an apology. Getting alcohol counselling shows you are sorry. Bitching and moaning and getting revenge is not sorry.  FYI – you cannot get a diversion unless you admit that you have done it ie you are guilty.

Now this raises an interesting question. Is it illegal for a victim to name herself? The Act says a victim can apply to the court (if aged over 16) for their name to longer be suppressed, but in theory I would say naming outing yourself could be an offence.

And does the victim naming herself effectively let [name deleted] off the hook for doing so?

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Open Justice

April 22nd, 2011 at 8:54 am by David Farrar

Published this week was the “Report of an Inquiry requested by the Minister of Justice on the Publication of Names of Victims in Judicial Decisions on the Judicial Decisions Online Website of the Ministry of Justice“.

It basically finds that the Ministry of Justice staff need to fully read each and every judgement to check if aspects of it should have their names supressed, rather than just rely on the Judges ticking the right box to indicate name suppression applies, which will indicate so by way of a large banner at the top of the judgement.

In 11 cases (out of 1,500) Judges neglected to tick the right box, and hence judgements appeared without victims names supressed.

The main recommendation of John Marshall QC is that Ministry staff no longer rely on whether the banner appears or not, but read the judgements in full as they are legally obliged to make sure the law is complied with even if a Judge has not indicated it to them.

This is probably the right thing to do, but a bit of a pity as it means that the judgements will no longer be able to be processed by a “web monkey” (my term), but by fully qualified lawwyers, which is a bit of a waste of their talents. It would be nice to think one could just rely on Judges getting it right.

Of course one has human error, but I wonder if one could program the technology to alert a Judge if they have not ticked a name supression banner box, based on say a word search of various offences.

Anyway that is not the major foccus of this post. It was this comment by Mr Marshall:

Serious consideration should be given in discussions between the Ministry and the judiciary to changing the default setting on the Judges’ IT system to “N” = Not to publish

I think that would be a very bad steop to take. the default setting should be to publish.

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Dogs get name suppression

April 15th, 2011 at 6:57 am by David Farrar

Belinda McCammon at Stuff reports:

A leading political figure has given evidence about allegations of dog-napping and assault on a street in an upmarket suburb.

The man, his ex-wife and his new partner cannot be named because of strict suppression orders. Even the two dogs have name suppression.

How silly. Did the dogs ask for name suppression?

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Why we need a register of name supression orders

April 10th, 2011 at 12:00 pm by David Farrar

Bevan Hurley in the HoS reports:

Barry Hart was rebuked by Judge Charles Blackie in Manukau District Court on Wednesday for telling the Herald on Sunday that the name of a man charged over a cocaine smuggling ring had been suppressed.

Hart told the court the incident had been a misunderstanding and he had been acting in the best interests of his client.

Surely this is a disciplinary matter? Or does the Law Society not have a problem with a lawyer inventing fake supression orders and lying to the media?

In January a group was charged in connection with the importation of 3kg or $500,000 worth of the Class A drug. The paper approached Hart’s client on a Friday and later checked with the court to ensure he did not have name suppression. The next day, Hart called and said his client had interim name suppression after an appeal at Manukau District Court.

In fact, Hart filed an appeal the day after the report was published – with the name removed. He lost, but after an unsuccessful appeal to the High Court, the full case for suppression was heard at the district court this week.

This appears to be an absolutely blatant lie. And worse, it has suceeded. If there was a register of supression orders, then the Herald on Sunday would have known Hart was laying, and could have legally published the name of his client.

This also reinforces the need for blogs to have the ability to easily check if a supression order exists. Under a proposed law change, we will face criminal liability for not removing the name of someone with name suppression, if we have been alerted to it. Now this would allow lawyers such as Mr Hart to tell a blog owner that the name of their client is suppressed and must be removed, and the blog owner will feel obliged to comply, even if the lawyer is lying.

The proposed law should be amended so that a blog owner only has to remove a name, if the request comes from an official source such as Ministry of Justice or Crown Law.

This article shows that defence lawyers can not be trusted to be truthful about whether their client has name suppression. If this is unfair to all the other defence lawyers out there, I’ll retract it once I read that some of Mr Hart’s colleagues have filed a disciplinary complaint against him.

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Suppressing the wrong details

March 24th, 2011 at 9:00 am by David Farrar

Jonathan Marshall at Stuff reports:

The television star who performed a drunken sex act on a four-year-old continues to be employed by at least two big New Zealand companies.

The comedian, whose name is suppressed to protect his victim’s identity, entered a surprise guilty plea in Auckland District Court yesterday.

He admitted performing an indecent act on a child, after originally being charged with the more serious offence of unlawful sexual connection with a person aged under 12. …

If the case had gone to trial, the man’s lawyer, Marie Dyhrberg, intended to tell a jury her client was so intoxicated that he was not aware his victim was a child.

Really? You thought a four year old was an adult because you were drunk????

It is wrong the comedian will have permament name suppression. With respect, the wrong details are being suppressed. What should be suppressed is any details of the crime which would identify the victim. Suppress the fact that it occcured at his partner’s house, rather than his name.

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Name Suppression Submission

February 19th, 2011 at 11:38 am by David Farrar

SUBMISSION OF DAVID FARRAR TO THE JUSTICE & ELECTORAL SELECT COMMITTEE ON THE CRIMINAL PROCEDURE (REFORM AND MODERNISATION) BILL

About the Submitter

  1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
  2. I am the owner and editor of kiwiblog.co.nz, a blog which attracts hundreds of comments every day from close to 7,000 commenters. Some commenters have broken name suppression orders on my site, and a considerable amount of time is spent on detecting and deleting any breaches.

    Executive Summary

  3. This submission is focused on the provisions around name suppression and the Internet.
  4. I believe name suppression orders have been too easy to obtain, and support the provisions of the bill which make it harder for name suppression to be obtained.
  5. In the Internet age, it is very difficult to keep things secret, if there is a public interest in them. Wikileaks is a classic example of this – the US Government couldn’t stop publication of some of its most classified secrets. So the NZ Government will not be any more successful in stopping publication of defendants details if someone strongly enough wants to publish them.
  6. Websites with no NZ connection (ie not hosted in NZ, and no known author/owner in NZ) can public suppressed details with no comeback under NZ law.
  7. The bill proposes an offence for ISPs (which are defined as including bloggers) who do not delete any content which breaches a name suppression order. I am unsure as to the need for this, as I believe a failure to delete any content (once notified of it) is already an offence. This is why I have deleted comments which do breach suppression orders.
  8. If there is to be a specific offence for ISPs, then significant changes need to be made to it to protect content hosts from being jailed for material they were unaware of. I detail these later on
  9. I support the creation of a register of suppression orders for two reasons. The first is it would help media ascertain what is suppressed – something which can be challenging currently. Secondly it would allow publishers to verify if material on their site is in breach of an order, so it can be taken down.

    Clause 214 – Standing of members of media

  10. Clause 214 restricts standing on a name suppression application to media who are subject to the BSA or Press Council. Unlike c202(2)(b) which caters for other persons reporting on court proceedings, c214 has no exceptions.
  11. I do not believe it is necessary to have any restriction on whom may be heard in relation to a name suppression application. It is highly unlikely anyone would seek to be heard whom doesn’t have a legitimate interest in the issue. They might be an online publisher like Scoop, a student newspaper such as Salient, or even a transparency in government foundation.
  12. If standing is to be restricted to “media”, then it would be desirable for the courts to have the flexibility (as in 202(2)(b)) to recognize a wider range of media

    Clause 215 – Offences and penalty

  13. The maximum term of imprisonment of six months is excessive, especially as it may apply to publishers who do not knowingly break a suppression order but merely are found not to have detected and deleted a breach. A possible penalty of jail is excessive – even though this applies only to breaches of victims identities.

    Clause 216 – Liability of ISPs

  14. Clause 216(2)(a)(i) states an ISP is liable for any breaches done by their users if they “knows or had reason to believe” the material is breaching a suppression order. This is far too uncertain a test for an issue of criminal liability. The test should be as per the Law Commission recommendation “that they know”.
  15. Clause 216(2)(a)(ii) also removes liability protection if an ISP “does not, as soon as possible after becoming aware of the infringing material, delete the material”. It is important to define what constitutes awareness of the infringing material. Having someone merely tell you that there is infringing material somewhere on your site should not be sufficient to remove liability. You need to be aware of the specific page or URL it is on.
  16. Clause 216(3) says the a court in determining liability must “take account of all relevant matters, including whether the Internet service provider has been notified of the alleged breach”. It does not define whom can do the notification. Ideally notification would be by way of a notice and takedown regime as proposed by the Telecommunications Carriers Forum. Before an ISP removes material, they need to have the assurance that it is someone in authority asking them to remove the material. Either Crown Law, the Ministry of Justice, the Police or even Judge’s Registrars could be deemed the appropriate authority to issue such takedown notices.
  17. Clause 216(4) requires an ISP to notify a user if it has deleted material which is suppressed. This is not practical for bloggers (who are defined as ISPs under this bill) as many of the commenters are anonymous. It is desirable to say that notification should happen, only if practical.
  18. It would be useful to use an alternate term such as a “content host” rather than ISP for the purposes of this section. Defining persons who host material on websites as an ISP will just lead to confusion between different Acts.

 If significant changes are not made to these provisions, ISPs and Internet publishers (such as myself) could face criminal liability despite our best efforts to obey the law. The Government needs to make it was easy and clear as possible for Internet publishers to know if material on their site infringes, to locate that material and to remove it secure in the knowledge that the request to do so has come from an authorized agency

David Farrar

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Puerile attempt at blame game backfires on Labour

February 15th, 2011 at 7:00 am by David Farrar

Many will have seen the story about how two victims of sex abuse were named on a Ministry of Justice website.

Simon Power announced there would be an independent review to find out how this happened.

Rather than wait for anything resmebling a fact, Labour MP Carmel Sepuloni announced she had worked out who was to blame – the National Government of course.

The breach of name suppression of two sex abuse victims by the Ministry of Justice is a mistake that should never have happened and is another example of the National Government’s failure to protect the rights of  victims.

Simon Power says he will be asking questions of the officials tomorrow morning to ascertain how this mistake occurred, when really he should be pointing the finger at himself and his Government.  The slash and burn cuts that the National Government have continued to make across the public sector, are inevitably going to result in mistakes being made.  The funding cuts to resources and jobs across the sector – equate to, additional pressure being placed on those still working there – leaving them stretched beyond the limit.

Rather sad that two victims of sexual abuse have had their identies revealed, and that Labour merely sees this as an opportunity to smear National and continue their ideological arguments that the public sector should be immune from the impact of a recession.

So was it some over-worked staffer in the Ministry of Justice who made an error, and ignored the Judge’s supression order? Is Carmel’s smear attack justified?

Well this later story reports:

The Chief High Court Judge, Justice Helen Winkelmann, says the court failed to note suppression rules on a judgement which led to the publication of the names of two sexual abuse victims on the Ministry of Justice website.

Justice Winkelmann, in a statement this evening following her inquiries, said it was an error and she very much regretted it had happened.

I’m amazed Labour have not yet found a way to blame the Canterbury Earthquake on public sector staff cuts.

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Devlin catches on

January 25th, 2011 at 9:00 am by David Farrar

Vaimoana Tapaleao in the NZ Herald reports:

Sports broadcaster Martin Devlin – the celebrity who was arrested and charged with disorderly behaviour – says he sought name suppression to protect his children from embarrassment. But doing so only made things worse, he admitted yesterday.

Yep. If his lawyer advised him to do so, he was very badly advised. The quest for name suppression generated far more publicity for Devlin, than he would have attracted for a very minor offence. And it was of course ineffective. Even though there were no blatant high profile breaches of the suppression order, his identity became well known through word of mouth.

“I sought name suppression in an effort to try and protect my children from being identified and embarrassed by my behaviour,” he said in a statement to media. “Obviously the only effective way to prevent that was not to do it in the first place.”

Indeed.

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The 46 year old name suppression case

January 20th, 2011 at 10:54 am by David Farrar

Victoria Robinson reports:

Continued name suppression for a 46-year-old celebrity charged with disorderly behaviour has been slammed by the Newspaper Publishers’ Association.

The entertainer, who faces the charge after being arrested in downtown Auckland on December 29, has been accepted into a police diversion scheme.

Judge David Harvey, in Auckland District Court, adjourned the celebrity’s application for non-publication of his name, which media is expected to oppose, until February 9.

It is worth noting that the Judge here has not granted name supression. It has been applied for, and interim supression cotinues until the hearing on Feb 9th. The problem lies with the defendent trying to gain permament name supression, and the inability to schedule a substantive hearing more quickly.

The defendent has either had some shockingly bad advice, or has ignored some good advice/ If he had never sought name supression, the incident (which was minor and he got diversion for) would have been a page five or seven story lasting one news cycle.

But the use of name supression has meant half the country wants to know who the 46 year old is (the other half already know), and you’ve had other 46 year olds deny it is them.

So the end result for the 46 year old is a tonne more bad publicity that if he had never had name supression.

Newspaper Publishers’ Association chief executive Tim Pankhurst said yesterday that media companies should challenge the suppression to protect the principles of open justice.

“The courts in this country are far too ready to offer suppression. A justice system operates the most effectively in full sunlight and any sort of suggestion that people of influence … are protected, undermines the system.”

I agree with Tim Pankhurst that media should challenge this, but note that the Judge has not yet made a decision on suppression. Also worth noting that the Police did not oppose interim name supression. This is part of the problem – we need a culture in the Police where they challenge name suppression in almost all cases.

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Trevor on teachers’name supression

November 19th, 2010 at 10:30 am by David Farrar

Trevor Mallard blogs:

Media – mainly on Sundays – and bloggers especially Cam Slater have been frustrated with Teachers’ Council rules that make it very hard to hear cases in public. I share their concerns. There is almost no way to have suppression orders because the maximum fine for a breach is $1k which deters no one.

The Council is understandably reluctant to risk identifying victims especially of sexual abuse but their rules don’t let them identify accused and not the victim – and won’t change with the current fine level.

This breeds rumours and false conclusions.

I’ve got two SoPs one very simple which increases the fine to $100k and would leave the Teachers’ Council to rewrite the rules. The second, below, is more comprehensive and adopts the position that Simon Power is promoting for the Courts. It has a presumption of an open hearing.

I agree with a presumption of open hearings. I also agree that if you have name supression, you need a larger maximum fine than $1,000 to be effective. However $100,000 is too much considering this is just for a professional disciplinary board – not an actual court.

You can read the proposed SOP in full at Red Alert, and comment either there or here on what you think.

It’s a good example of MPs using blogging to get feedback on proposed law changes.

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A reluctant complaint

October 11th, 2010 at 9:00 am by David Farrar

Dear Commissioner Broad,

This is a complaint alleging that Television New Zealand Ltd broke S140 of the Criminal Justice Act 1985 with their 6 pm One News bulletin on Tuesday 5 October 2010.

A video of the particular item can be found at http://tvnz.co.nz/local-elections-2010/court-appearances-over-alleged-voting-scam-3818752/video

The item showed the arrest of a man in relation to alleged enrolment fraud in Papatoetoe.

At around 50 seconds into the item, the reporter speaks to the camera with a Labour Party billboard in the background, showing photos and names of three candidates for the local elections. Slowly the shot zoomed in until the only two things visible were the reporter and the photo of the candidate on the right. At this stage his billboard photo is almost as large as the reporter. It is not an obscure background image.

The candidate prominently focused on was Daljit Singh, who was one of the two men arrested. At the time of the broadcast his name and identity was subject to an interim suppression order from the Auckland District Court.

The inclusion of the billboard featuring Mr Singh, and the extended close up zoom onto his image was obviously a deliberate decision by TVNZ to indicate or hint that Mr Singh was the person arrested. They did also show some images of other candidates and billboards but they were extremely rapid fire.

In the recent case of Police v Slater, the judgement of Judge Harvey made it clear that it is not necessary to actually name the person with name suppression, to be in breach of an order. Judge Harvey states:

The information can be decoded in the same way that an aggregation of information may lead to the identification of a person by way of a process of elimination – another form of interpreting a particular code or solving a puzzle.

The focusing on his name and photo allowed people to “solve the puzzle” of who had appeared in court. Presumably, this must have been the intention of TVNZ, otherwise they had no need to film their item in front on Mr Singh’s billboard.

I should note that personally I strongly disapproved of the situation where Mr Singh was able to get interim name suppression. I would even go so far as to say that I thought TVNZ provided a public service by implicitly identifying him before the deadline for posting in votes.

But I do not believe one can expect other “publishers” to obey the laws around name suppression, if they are not applied equally.

Therefore I reluctantly file this complaint.

Faithfully,

David Farrar

(complaint was sent by e-mail on Saturday 9 October 20110)

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