Suppression and the courts

By Legal Eagle

I am planning a long post on super-injunctions and celebrities in the coming weeks, but in the meantime I thought I’d have a quick look at suppression orders and the Victorian Supreme Court. Suppression orders prevent the media from reporting on trials to which such orders apply.

Apparently suppression orders were rife during the Melbourne gangland trials, not that one would know it, although some orders were lifted after Tony Mokbel’s trial. As Peter Bartlett noted in a post at The Drum, they have also been used in terrorism trials. Finally, suppression orders have been in the news lately as broadcaster Derryn Hinch has recently pleaded not guilty with regard to breaching certain suppression orders, and his case has been adjourned to June. Hinch allegedly violated various suppression orders in 2008 by publicly naming two sex offenders. Hinch was charged with five offences pursuant to the now repealed Serious Sex Offenders Monitoring Act 2005 (Vic). Earlier this year, he brought a constitutional challenge against the legislation pursuant to which the suppression orders were issued, but the High Court decided that the legislation was constitutionally valid in Hogan v Hinch [2011] HCA 4, and did not violate the implied constitutional right to freedom of political speech, nor the principles of open justice.

Generally speaking, our courts work upon a principle of “open justice”: that is, the proceedings which lead to a decision are open, and justice is seen to be done publicly. Open justice is a principle with a long history in the law, as Lord Neuberger observed in a speech delivered earlier this year. His Lordship noted that it had been recognised since the dawn of the common law, and that judicial support for this principle also has a long history. For example, as his Lordship notes, in Daubney v Cooper (1829) 109 ER 438; 10 B & C 237 at 240, Bayley J said:

. . . we are all of the opinion, that it is one of the essential qualities of a Court of Justice that its proceedings should be in public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, – provided they do not interrupt the proceedings and provided there is no specific reason why they should be removed – have the right to be present for the purpose of hearing what is going on.

Open justice is a principle which is fundamental to the rule of law. When justice is hidden from the scrutiny of the public, it can be abused, for no one is aware of the decisions which are being made, and there is no scrutiny of them by society. Of course, as with any law, there are always specific exceptions to the general rule, as French CJ notes in Hogan v Hinch [2011] HCA 4 at [21]. For example, it may be necessary to suppress the name of a victim in a blackmail trial, or the name of a secret informant, or to suppress proceedings relating to national security.

Suppression orders seem to be particularly problematic in Victoria. It was reported in The Age today that the State government is considering attempting to wind back the number of suppression orders. We seem to have more than other states, and they are increasing:

Total suppression orders in Victoria jumped from 204 in 2005 to 315 in 2009. The County Court made 148 suppression orders last year, up from 66 in 2005. So far this year it has made 16 orders in serious sex offence cases.

A report by media coalition Right to Know found Victoria had more than 600 reported suppression orders between 2006 and mid-2008, against 54 in New South Wales.

The open-ended nature of many such suppression orders is problematic. As Bartlett suggests in the post linked above, ‘[s]uppression orders should only be made where absolutely necessary and the Courts should be more careful to set finite durations’.

Still, I think there is another aspect to the court’s willingness to embrace suppression orders. I suspect that it stems from a deep-rooted distrust of the press, and in particular, a concern that the press often does not accurately report legal issues. Media reports on matters in which I was involved when I was in practice were very variable. Sometimes, newspapers went for the sensationalist headlines rather than accuracy. In one case in which I was involved, the case was outright misrepresented in the newspapers. On the other hand, I also came across a few dedicated journalists who took care to ensure that what they reported was true and accurate. The fault is not all that of the journalists – to non-lawyers, the law is often a morass of unintelligible concepts, and it is for this reason that part of my aim in this blog is to demystify the law for lay people.

Also, perhaps too many judges have seen trials derailed after careless reporting of a crime has been decided to be unduly prejudicial. There is some evidence that even if judges direct juries to ignore pre-trial publicity, it still has an important effect on the decisions juries make (see eg, Geoffrey Kramer, Norbert Kerr and John Carroll, ‘Pretrial Publicity, Judicial Remedies, and Jury Bias’  (1990) 14 Law and Human Behavior 409. More detail about how pre-trial publicity can affect jurors’ decisions can be found in Amy Otto, Steven Penrod and Hedy Dexter, ‘The Biasing Impact of Pretrial Publicity on Juror Judgments’ (1994) 18 Law and Human Behavior 453). It seems from the Kramer, Kerr and Carroll piece that the pre-trial publicity which has a longer lasting effect is that which provokes a strong emotional reaction, suggesting that the media should be careful with sensationalist reporting of cases.

There is a balance here which needs to be met better, and I think that lawyers and the media can only set the balance right by working together. As the UKSC Blog notes:

In the era of television, internet, and social media, the workings of every institution are exposed to far more public opinion than before.  With greater scrutiny comes the need to adapt and evolve.  Law is no different; indeed, arguably more so, since democracy requires that justice not only be done, but is seen to be done.  However, the perception remains that the law is frequently out of touch with society.  Most practitioners will be able to relate stories of clients who complain that they cannot understand what is being said and written by lawyers.  Judgments that stretch over 200 pages; contracts with seemingly no punctuation and endless sub-clauses; latin phrases which occasionally enlight[en], but frequently confuse.

Equally, for their part most practitioners will have reason at some point to feel aggrieved at the lack of understanding shown about their work by the court of public opinion.  The quality of case reporting in the media fluctuates, but often important legal principles are misunderstood and misreported, which only adds fuel to those complaining about the role played by “unelected judges” in the law making process. The Supreme Court’s decision in R(F) v SoS Home Department (2010) UKSC 17 (lifelong inclusion on sex offenders register, without review, found to be incompatible with Article 8 ECHR) provides a recent case in point.  As we commented here, this was a rare case in which eleven judges reached the same conclusion on the disproportionate infringement by a piece of legislation on individual rights – a point which was not taken up by many headline writers (“Rapists win new legal rights” / “Paedophiles and rapists win right to wipe their names from register – because it could breach THEIR human rights”).

If both lawyers and the media act responsibly and thoughtfully in communicating proceedings to the general public, I suspect there will be less need to suppress proceedings.

2 Comments

  1. Jeremy Gans
    Posted May 24, 2011 at 7:18 am | Permalink

    There’s a good Australian study on prejudicial publicity, which is based on interviews with actual jurors: Chesterman et al, Managing Prejudicial Publicity at http://www.lawfoundation.net.au/report/prejudicialpublicity. It suggests that jurors routinely ignore directions to ignore media reporting (naturally – only judges and children seriously think otherwise) and that the main thing they learn from media reporting is how terrible it is (which is exactly the same thing lawyers learn. But studies that show that lawyers aren’t the smartest folks in the room don’t get a lot of attention from lawyers for some reason.)

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