Editorial: Slowly but surely removing the gag

It has been a long, hard-fought and expensive battle at every turn, but the decision handed down by the High Court yesterday is well worth it. The "billionaire case" has been about much more than a rich visitor caught with cannabis and discharged without a conviction after paying a donation to a drug rehabilitation centre. It is about much more than the name of an individual. The suppression of the man's name reflected the cavalier attitude taken too often in the courts of this country to the principle of public justice.

The High Court's decision strikes a resounding blow against that attitude. It is not the first telling blow struck by news media in recent years and it may not be the last required, but it puts some important stakes in the ground that judges in future will have to observe. The first of them is that section 14 of the New Zealand Bill of Rights Act, guarding freedom of expression, must be given due consideration whenever a judge is considering suppressing the identity of a person involved in criminal proceedings.

In their decision, Justices Potter and Nicholson point out that freedom of expression under the Bill of Rights Act includes the right of the public to receive information as well as the right of news media and others to convey it. All rights enshrined in the bill are subject "only to such reasonable limits as can be demonstrably justified in a free and democratic society." Thanks to this decision, courts considering name suppression must now satisfy themselves that it is "demonstrably justified" on the facts before them.

It will not be sufficient in future simply to make suppression orders by reference to the discretion given judges by the Criminal Justice Act. When exercising that discretion, judges will now have to give consideration to relevant provisions of the Bill of Rights Act. "Failure to do so," the High Court declares, "will give rise to an error of law."

That means, at the very least, that judges will have to give reasons for suppressing publication. If that seems an unremarkable requirement, it rarely happens. The habit of name suppression (which extends to all identifying details) has been so ingrained in the criminal courts that judges seldom bother to give reasons. Frequently the order is sought instinctively as an afterthought to defence submissions, and granted with a minimum of discussion, if any.

That is exactly what happened in the Otahuhu District Court on January 7 when the wealthy American, here to watch the America's Cup, was discharged without conviction, his donation obliquely acknowledged, and wished well for the remainder of his stay. The Herald had to bring an action, resisted by the man's counsel Marie Dyhrberg, even to see the written submissions she had made for his discharge and name suppression.

She made no particular case for name suppression and the court had not been aware that the man was a prominent financial supporter of attempts to legalise marijuana in the United States and had been described by a friend as a "functioning pothead" for an item in Fortune magazine. Without that information, the High Court concludes, the judge in the lower court made the wrong decision.

The man cannot be named until his rights of appeal have been exhausted. But his name will be important in this country only for the principles of law that are being built on it. Jurists from elsewhere are often surprised at the extent of name suppression in this country's courts. Slowly but surely, we are removing the gag.