Does open justice mean you should be allowed to boost your blog-site's profile by identifying a rape victim?
In a previous post on the pornographer Steve Crow, I had occasion to remark that "those who push the boundaries and advocate strongest for the freedoms we all enjoy often are not the sort of folks we'd like to pop by our house for a beer and a BBQ." As exhibit number two in support of this general claim, please step forward ... Mr Cameron Slater.
I've never met this fellow, who seems determined to brand his entire personality by the nom-de-web "Whaleoil" in a manner somewhat reminiscent of this clown. And given how Mr Slater chooses to present himself to the world, I really don't think I'd gain any pleasure from such a meeting. Nevertheless, his current quest for martyrdom on a charge of breaching name suppression orders* raises complex, important and quite urgent questions.
A few qualifications to that last sentence, before I come back to it. First of all, I'm highly suspicious of Mr Slater's claim that the deliberate flouting of court orders on his website was motivated by a deep commitment to the principles of "open justice" and in response to the public's burning desire to see a complete end to name suppression for accused persons. His delighted crowing about how many extra page hits (and attention from the "real" media) the issue has generated for him makes me think he's more interested in doing well than doing much good. However, the motive for his actions doesn't necessarily undermine the importance of the issue he illustrates.
Second, the particular examples Mr Slater has chosen to fight his battle on are not, on closer inspection, that pretty. Sure, the by-now infamous "prominent NZ entertainer" who obtained permanent name suppression following conviction for a late-night, drunken sexual assault represents a debatable judicial call. But the temporary (note that - temporary) suppression of the name of a "former-Olympian" until his trial on multiple charges of sexual violence against his wife was imposed to protect the identity of his victim. Parliament has determined that a suppression order in this situation is all but mandatory, precisely because publishing the identity of the alleged attacker would reveal to all the world that his wife (allegedly) has been raped.
(Actually, given Mr Slater's purported concern about the "rights and wrongs of criminals being able to hide their details when the victims are often publicly named and their pictures shown for all the world to see", I'm a little surprised this aspect of the case seems to have passed him by. After all, he's been charged with a breach of s.139(1) of the Criminal Justice Act 1985 - breaching a non-publication order that protects the identity of a rape victim. Perhaps he ought to make that fact a little more prominent in his campaign, or perhaps the "real" media might like to question him on that matter?)
Which leads to a third point. Mr Slater's preferred solution to the problem of when it is legitimate to prevent the publication of an accused's name is to restrict such orders to "[cases] involving sex crimes against minors, so that the victims are not identified." Oh well, so much in that case for the poor wife of the ex-Olympian. Apparently "open justice" (and Mr Slater's attendant right to blog as he desires) means that we all get to revel in the knowledge that she (allegedly) is a rape survivor. Such are the costs of true principle fearlessly applied.
As you may guess, I actually don't have much time for Mr Slater and his self-pronounced jihad. I strongly suspect he'll end up with a conviction, despite his cute attempts to side-step the law. (Seriously - thinking the use of pictures rather than words would make the whole thing OK? Do the fairies also leave you alone if you say the magic rhyme just right?) And it isn't even that important if he does somehow skip by on a technicality - although, isn't it amazing how "Flea lawyers" and legal loopholes suddenly are OK when they are on your side?
What is complex, important and quite urgent is the balancing required in any situation of name suppression between a wide variety of important principles. Yes, freedom of expression is one such principle. That freedom helps to advance the important institutional value of open justice seen to be fair and impartially applied. But it also comes up against interests in privacy (for both the accused, who may not be guilty of anything, and the victim). As well as concerns about the ability of providing fair and impartial trials by jury in an atmosphere of media frenzy. These are tough issues, and anyone who thinks there is an easy answer to them is (by definition) simple minded.
Fortunately, such problems don't have to be answered by people like Mr Slater (or for that matter, me) simply typing our ill-considered spleen into cyberspace. Some serious and sensible people have been thinking about it. In fact, in a rather nice coincidence of timing, the Law Commission reported its recommendations on reforming the law on name suppression to Parliament just two days before Mr Slater had his date with destiny (you can download a copy of the report from here.)
From the summary of that report, the Commission recommends that:
The courts should have the power to make an order prohibiting publication of the name, address, or occupation of a person accused or convicted of an offence, or any particulars likely to lead to that person’s identification, on any of the following grounds:
(a) where there is a real risk of prejudice to a fair trial;
(b) to prevent undue hardship to victims;
(c) to prevent extreme hardship to the accused and/or persons connected with the accused;
(d) where publication would endanger the safety of any person;
(e) where publication would identify another person whose name is suppressed by order or by law;
(f) where publication is likely to prejudice the interests of the maintenance of the law, including the prevention, investigation and detection of offences;
(g) where publication would cast suspicion on other people that may result in undue hardship.
That's the Law Commission's view, anyway. Now it is in the hands of Parliament (or, really, the Government) to decide what to do next. Which is to be far, far prefered to leaving it to the "blogosphere" to sort out.
* Note for pedants: there is no such thing as a "name suppression order". Rather, under the Criminal Justice Act 1985 the courts may (and as noted, in cases of sexual offending virtually must) make orders prohibiting the publication of various details relating to a case before it, a power that also covers the name of the accused. Such non-publication orders (whether temporary or permanent) are colloquially termed "name supression" - I've adopted the common parlance here.