The constitutional case for openness
Open justice is not a courtesy to the press but a constitutional principle of long standing, classically articulated in Scott v Scott [1913] AC 417, which treated publicity as the very soul of justice and secrecy as tolerable only on the narrowest necessity.
In New Zealand, it is reinforced by the Bill of Rights Act 1990: section 25(a) guarantees a fair and public hearing, and section 14 protects the freedom to receive and impart information about the courts.
The rationale is practical as much as symbolic. Publicity disciplines state power, lets the public see that like cases are treated alike and the powerful are not quietly excused, and warns the community who has been convicted of what.
Suppressing a name interrupts the public’s ability to know what is being done in its name — which is why Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 treats suppression as a departure from the norm requiring reasons, never routine convenience.
What the law actually protects
The popular framing assumes suppression exists to vindicate the presumption of innocence, shielding defendants simply because they are unconvicted. The statute tells a different story.
Under section 200 of the Criminal Procedure Act 2011, a court may suppress a defendant’s identity only if publication would be likely to cause extreme hardship to the defendant or someone connected with them; cast suspicion on another person causing undue hardship; cause undue hardship to a victim; create a real risk of prejudicing a fair trial; endanger safety; identify someone who already has suppression; or prejudice the maintenance of the law or national security.
Two points follow. First, the presumption of innocence is not itself a ground. It operates inside the courtroom; if unconvicted status alone justified concealment, every defendant would qualify and open justice would collapse.
Second, Parliament deliberately chose “extreme hardship” — not mere hardship, embarrassment or reputational loss. The 2011 Act consciously lifted the bar from the old “undue hardship” standard and added that being well known does not, of itself, amount to extreme hardship. That was a legislative judgment that the previous law was too easily satisfied — the opposite of indulgence. Most grounds protect people other than the accused: victims, wrongly implicated third parties, witnesses and the trial itself.
The case that the law is too generous
None of this makes the criticism baseless. The most visible grievance is interim suppression, available on the much lower test of an arguable case and far more common than permanent suppression.
Because it attaches at the moment of greatest public interest — the first appearance of a “prominent New Zealander” — it produces the very spectacle that erodes confidence. Jesse Kempson, who murdered Grace Millane, held suppression for over two years, with the reasons themselves suppressed. The justification was sound — disclosure risked prejudicing juries in his separate trials — but to onlookers it looked like concealment for its own sake.
That points to a second grievance: suppressed reasons. Open justice is hollow if the public is told neither the name nor why it is withheld.
Third is equality of arms: litigation favours those who can afford skilled counsel, and the suspicion of “celebrity justice” corrodes confidence even where unfounded. Fourth, suppression can defeat the warning function of openness: other complainants cannot recognise a pattern and come forward, and survivors may be silenced by an order protecting the person who harmed them.
The case that the balance is broadly right
Against this stands a serious counter-argument. The harm of wrongful exposure is asymmetric and permanent: an accusation reported today is indexed and searchable indefinitely, and an acquittal never catches up with it.
For the genuinely innocent, suppression may be the only protection against public destruction imposed before any finding of guilt.
The grounds also protect the blameless: publishing a name routinely identifies children, partners and family, punished by association for conduct that is not theirs. Calling an order that shields a defendant’s young children “favouring the defendant” mistakes who is protected.
The fair-trial ground reflects a real risk: where judicial directions are not enough, as with Kempson’s parallel trials, temporary suppression is the only way to preserve a fair hearing. And permanent suppression remains uncommon, granted against a high bar.
The direction of reform
The most telling answer lies in what Parliament has been doing, because the trajectory runs steadily against the defendant. The 2011 Act raised the threshold; the Contempt of Court Act 2019 tightened publication rules; and the Victims of Sexual Violence (Strengthening Legal Protection) Legislation Act 2025, in force from October 30, 2025, bars permanent suppression for convicted sexual offenders without the victim’s consent and extends automatic suppression to all complainants in sexual cases. A legislature that believed the law too soft on defendants would do roughly this; the most recent amendment removed one of their most valuable protections.
Conclusion
The tension between open justice and the accused is genuine and unresolvable in the abstract, but the charge that the law systematically favours defendants does not survive contact with the statute: suppression does not flow from the presumption of innocence, the threshold is deliberately demanding, fame is expressly excluded, and most grounds protect others.
What is true is that the regime’s operation generates the appearance of favouritism: interim orders clustering around high-profile cases, occasionally suppressed reasons, and protection that tracks wealth.
Reform energy belongs there — shorter, rigorously reviewed interim orders, a presumption of openness as to reasons, and resourcing so protection does not depend on means — not on lowering an already high bar.
The remaining task is to make the law’s operation match its design, so that rare and justified suppression is not mistaken for a privilege of the powerful.
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