Name Suppression: Balancing Open Justice and Privacy
By Kyle Maxwell
Content Warning: This article discusses sexual offending.
Introduction
Over the last two years, every court in Aotearoa has rejected LF’s fight to permanently suppress his name. LF’s case has made headlines over that time as the public grapples with how someone who committed sexual offences against six young women over a period of three years can remain anonymous. However, LF’s name remains temporarily suppressed until early 2025.
This is despite the Supreme Court finding that this case opened a sufficiently poignant can of worms to allow an appeal straight from the High Court, circumventing the Court of Appeal’s decision to reject LF’s appeal.[1]
However, what actually goes into a name suppression decision is not well understood. This is hardly surprising, given the tumultuous concoction of competing rights and interests involved in many of these cases.
This article breaks down the purpose of name suppression, who can get it, and the legal requirements for it to be granted. The present case provides a backdrop against which this can be done.
Background to LF v R
LF v R is the latest instalment in a series of appeals from LF. He pleaded guilty to 10 sexual offending charges. Six of those were rape or sexual violation. They occurred between 2017 and 2020, when LF was aged 14 to 17. The victims were similarly young. In its judgement, the Supreme Court tackled how youth justice, mental health and disability, and social media influence name suppression. It also took the chance to affirm the legal tests.[2]
What is name suppression, and why do we have it?
Name suppression prevents anyone from publishing the name of an individual. For example, this could be a traditional publication in a newspaper or on a social media forum. Any details that would identify that person also cannot be published.[3]
The purpose of name suppression is to protect people. This can be a defendant, victim, witness, complainant or anyone connected to a court hearing. In some instances, defendants have been granted name suppression because of a real risk of facing venomous abuse on social media, where comments would be neither fair nor accurate.[4]
Who can get name suppression?
A) Automatic suppression
Individuals automatically have their names suppressed in certain circumstances. Firstly, anyone accused or convicted of incest or sexual connection with a dependant family member. This is because the complainant would likely be easily identifiable through the identification of the accused.[5]
Secondly, child complainants and witnesses. All six of the victims in LF received name suppression on this ground. However, three of them have chosen to forego that right in order to speak out. The court must remove suppression where the complainant, having turned 18, asks the court to do so and fully understands the nature of that request.[6]
Thirdly, complainants in most sexual cases. Complainants are granted suppression for their protection, given the nature of sexual offending. Again, the complainant can ask the court to void that suppression.[7]
Finally, anyone charged in the Youth Court. Because LF first appeared in the Youth Court, he was automatically granted name suppression. However, LF appeared before the District Court for his offending against the fifth victim, as it was a sexual offence and occurred when he was 17. That made him no longer eligible for automatic suppression, so the question for the Supreme Court was whether he was generally eligible for name suppression.[8]
B) General suppression
Anyone who does not fit into the above categories can apply to the court for name suppression. The court will apply a two-stage test to ascertain whether name suppression is appropriate.[9]
The first stage asks whether the Court has jurisdiction to grant name suppression. There are eight ways a court can have jurisdiction, all of which involve a risk of prejudice against the applicant, someone connected to them, the security of New Zealand, or the law itself, should name suppression not be granted.[10]
The second stage is where the delicate mixture of rights and interests, often at loggerheads with each other, come into play. Having established jurisdiction, the Court must evaluate whether it would be appropriate to grant suppression.[11]
Stage 1: Jurisdictional Test
Three jurisdictional categories are most common among applicants:
- where identification would create a real risk of prejudice to a fair trial;
- where the applicant would face extreme hardship; and
- where the applicant’s safety would be endangered.[12]
A) Risk of prejudice to a fair trial
Controversial restaurateur Leo Molloy was fined $15,000 in 2020 for breaching a name suppression order. The order in question prevented the identification of Jesse Kempson, the killer of Grace Millane. Having been convicted of the sickening murder of Grace Milane, Mr Kempson had name suppression when he was on trial for sexual violation against a former partner.[13]
Unsurprisingly, knowing someone was guilty of a brutal murder and tried to argue ‘rough sex gone wrong’ might cause a jury to be biased when that same person is accused of sexual violation. As such, his identification posed a risk of prejudice to that trial.
B) Extreme Hardship
At play in LF were the other two common thresholds: extreme hardship and risk to safety. Firstly, LF argued that his identification would cause extreme hardship.
Extreme hardship is defined as severe suffering in the circumstances of the accused. Naturally, people risk hardship by committing heinous crimes. The question is whether the hardship would go beyond what someone who committed that crime might normally be expected to suffer.[14]
LF argued that four factors would cumulatively cause excessive harm: his autism spectrum disorder, social media commentary, his youth, and vigilante activism.[15]
Firstly, the Court noted evidence that exposure to anxiety-provoking events for autistic individuals could have serious negative effects. Personally, LF suffered a mental health episode after the High Court decision declining name suppression. However, LF’s extensive familial, communal and professional support sufficiently mitigated this risk.[16]
Secondly, LF contended that social media commentary could have an extreme impact on LF due to his youth.[17] In X v R, the Court of Appeal found that youth are especially vulnerable to public shaming on social media.[18] It further found that this could lead to practical and temporal impacts. Practically, one can only protect themselves from cyberbullying by going offline, leading to missed social and economic opportunities. The combination of missed opportunities at a young age and the permanent nature of internet commentary meant that internet shaming could have lifelong effects.[19]
However, the Supreme Court found that social media commentary would not be excessive because it focused on the victim’s suffering rather than being targeted at LF. [20]
This was different to X v R, where suppression was granted because X was prone to targeted social media abuse due not only to the sexual component of his offending but also because of his cultural background.[21]
Thirdly, LF argued that the court had an obligation to give primacy to his best interests as a youth. Aotearoa’s courts are committed to acting in the child’s best interests under several international obligations. LF’s best interest was a successful reintegration into society, which was likely due to his youth; the offending was not ingrained. However, despite being a primary consideration, hindered rehabilitative prospects of a young person were not enough to constitute extreme hardship.[22]
Finally, LF pointed to vigilante activism. These included violent acts towards the family home and online bullying. However, a suppression order would be futile to protect against this activism as those committing it already knew who LF was.[23]
As a whole, the Court found that these factors cumulatively failed to reach the threshold for extreme hardship.[24] However, these factors demonstrate the complex assessment courts must make in establishing jurisdiction.
C) Danger to safety
Both The District and The High Court found that this jurisdictional test was met in LF. LF had a history of self-harm, and evidence was before the courts that his mental health had deteriorated following the judgement initially declining suppression.[25]
The Supreme Court did not undertake a thorough analysis of those decisions. Instead, it proceeded on the basis that the threshold was met in order to consider the second test.[26]
Therefore, there are two general takeaways for this test. Firstly, danger to safety does not have to be physical. It also does not have to come from the act of another. Secondly, just because there is sufficient risk to one’s safety under this test does not mean they would also fit under the extreme hardship threshold.
Stage 2: Balancing Exercise
General Overview
Having established jurisdiction to grant name suppression, the court must delicately juggle a mix of rights in deciding whether it would be appropriate to do so.
On the one hand, the applicant will already have shown they will be negatively affected if they can be identified. There are also likely to be rehabilitative reasons for suppression. On the other hand, it is the “priceless inheritance” of open justice.[27]
Open justice is a constitutional principle that mandates transparent court proceedings. It is critical the public knows what occurs in the courts to maintain confidence in the rule of law.
However, most people cannot spend every day in court on the edge of their seats, observing name suppression hearings. The media plug this gap. Any decision to grant name suppression impinges on the media’s ability to report on the courts freely.[28]
Furthermore, the Bill of Rights affords protection firstly to freedom of expression and, secondly, requires that everyone is subject to a fair and public hearing if charged with an offence.[29]
As a result, there is a presumption in favour of open justice. It establishes a framework for assessing factors like harm to the applicant. It must be shown that those factors are more important than this constitutionally important principle.[30]
Generally, these factors could be whether the applicant has been convicted (or is only accused), the gravity of the offending, rehabilitative prospects and the impact of name suppression on those prospects, one’s ability to reintegrate and whether it would cause further harm to the applicant.[31]
Application to LF
In LF, the factors in favour of suppression and against open justice were those already addressed: the risk of harm, social media commentary, and positive rehabilitative prospects. LF’s youth compounds the importance of those issues.[32]
The primary considerations against suppression were the seriousness of the offending and the views of the victims. This meant there was a strong enough public interest in identification that name suppression was ultimately rejected.[33]
Firstly, the seriousness of the offending. The Court stated this was not a teenager who missed some social cues as the offending occurred over several years and against multiple victims. LF’s risk of reoffending was closer to moderate than low. Overall, given the serious and repeated nature of LF’s offending, identification was important to hold him accountable.[34]
Secondly, LF’s victims have strongly advocated against name suppression. Critically, a court is required by legislation to consider the views of victims.[35] One victim, Rosie Veldkamp, has said that her pain and anxiety could not be eased until LF is held accountable and all women can see who he is.[36] Furthermore, the victims are concerned LF may offend again because they are unable to warn other women. Lastly, the youth and vulnerability of the victims also pointed in favour of open justice.[37]
Conclusion
Name suppression is often highly controversial. The opposing rights involved make it extremely difficult to see both sides of the story. The courts have the unenviable task of balancing individual rights and safety and the constitutional importance of open justice. The two-stage test ensures that both sides are fairly considered. LF v R is an example of a situation where the competing interests are particularly complicated. The concoction of youth rights, mental health issues and sexual offending are but a handful of the vast considerations courts must take into account. Ultimately, in this case, the Court voted in favour of open justice.
Update: A new interim name suppression order for LF was granted during the production of this article. LF’s name will remain suppressed until 5 PM, 31 March 2025, unless varied by the court.
[1] M (SC 13/2023) v R [2024] NZSC 29 at [6].
[2] At [10].
[3] Criminal Procedure Act 2011, s 200.
[4] M v R, above n 1, at [81].
[5] Criminal Procedure Act, s 201.
[6] Section 204.
[7] Section 203.
[8] Oranga Tamariki Act 1989, s 438(3)(a).
[9] M v R, above n 1, at [35].
[10] Criminal Procedure Act, s 200.
[11] M v R, above n 1, at [36].
[12] Criminal Procedure Act, s 200.
[13] Sam Hurley “Grace Millane murder: Restaurateur Leo Molloy convicted of breaching killer Jesse Kempson's name suppression” New Zealand Herald (New Zealand, 29 April 2021).
[14] M v R, above n 1, at [69].
[15] At [73] to [89].
[16] At [78].
[17] At [79].
[18] X v R [2020] NZCA 387, (2020) 30 CRNZ 296 at [53].
[19] M v R, above n 1, at [80] and [81].
[20] At [84].
[21] At [84].
[22] At [64].
[23] At [85].
[24] At [89].
[25] At [74].
[26] At [90].
[27] At [40].
[28] At [40].
[29] At [42].
[30] At [44].
[31] At [27].
[32] At [91].
[33] At [98].
[34] At [93].
[35] Victims Rights Act 2002, s 16B.
[36] Lauren Crimp “Supreme Court decision to name sex offender a 'massive victory', survivors say” Radio New Zealand (New Zealand, 24 April 2024).
[37] M v R, above n 1, at [97].
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