2.73In light of the feedback the Commission received and subsequent consideration following further discussions, we have decided to modify the approach initially put forward in the Issues Paper.
Temporary prohibition on publication of previous convictions and concurrent charges
2.74We have considered carefully the concerns raised by submitters, but continue to support enacting a statutory provision prohibiting publication of a defendant’s previous convictions and any concurrent charges faced during a specified pre-trial period unless a court permits publication. We consider the benefit of greater clarity and certainty in the law outweighs concern over editorial freedom for publishers to exercise their own judgement about what material poses a risk to a fair trial and whether a prosecution is likely if they publish it. In an era where almost anyone can publish almost anything they want through the internet and social media, there are significant risks to the administration of justice in relying on people to exercise their own editorial judgement.
2.75We therefore recommend enacting a prohibition on the publication or reporting of a defendant’s previous convictions and any concurrent charges faced during the period up to the start of the trial. The prohibition would begin when the defendant is arrested and would remain until the beginning of the trial, at which point the trial court would review it and could lift, modify or extend the prohibition. We consider that the prohibition should apply from arrest because that is the earliest clear and readily determinable point.
2.76At common law there is uncertainty around when the period begins. It is normally contempt to publish material that is prejudicial once the laying of charges is highly likely or is imminent or pending.218 Introducing a specific point in time, the person’s arrest, makes the law much more certain. We considered the alternative approach taken in the United Kingdom, which involves the concept of “active” criminal proceedings and a list of provisions identifying when proceedings become active.219 In our view the difficulty with this approach is that it has not created the level of certainty we prefer.220 We acknowledge that there will be some occasions when highly prejudicial material may be published prior to arrest, but the proposed prohibition will cover most situations.
2.77Under our recommendation the pre-trial court and the trial court would be free to make an order lifting or modifying the restrictions. The prohibition would be a short-term ban that would protect a defendant’s rights until a court could adequately assess the potential impact of the information on a future trial. Under the provision we are recommending, accredited news media will be able to apply to lift or vary the ban.
2.78It is also important to consider how effectively and efficiently the court can modify or discontinue a statutory prohibition compared to making suppression orders to prevent publication of convictions or concurrent charges on a case-by-case basis. The process of making orders in each case would be more time consuming and costly and would place a greater burden on trial courts. It would put the onus on defence or prosecuting counsel to obtain, or on the court to make, a suppression order in respect of information that has such a strong tendency to interfere with the administration of justice. It is inefficient and the risk of publication in error is also too high. The recommended prohibition, which the court can vary or discharge, is more efficient and workable.
2.79We also consider the concern that a prohibition is overly broad and is a blunt instrument can be reasonably well addressed by refining the proposal. The proposed new provision (clause 8) in the draft Bill has no retrospective effect so historical reports of convictions that remain in existence and were lawful when first published will not be caught. The prohibition applies to new reporting and news that is contemporaneous with the present charges. It would also apply to deliberate hypertext linking to any earlier or historical reports that contain previous convictions.
2.80Historical reports that remain accessible, whether electronically or otherwise, and were lawful at the time they were made would be excluded from the prohibition and would instead be addressed by the courts where necessary by the making of a take down order. We discuss take down orders further below.221
2.81The provision should also only cover situations where a person has been arrested for an offence for which he or she could be tried by a jury. This means that the prohibition would not apply in relation to what are known as category 1 and 2 offences, which involve less serious offending and which are normally tried by a judge alone in the District Court.222
2.82We recommend enacting new provisions giving the courts statutory powers to make temporary suppression orders prohibiting publication of other information during the period leading up to and during the trial. Courts would be able to make such orders at any time where appropriate after a person is arrested. Temporary suppression orders would be available to prohibit, for example, the publication of information indicating bad character, including criminal or gang affiliations of the defendant or a witness, where the relevant court is satisfied that this is necessary to protect a person’s right to a fair trial. Another example would be photographic or pictorial information where identity may potentially be in issue at trial. We recommend, as discussed in chapter 7, that it should be an ordinary offence for anyone to breach a suppression order.
Criminal Procedure Act 2011 as a model
2.83We recommend the new provision be modelled on the statutory suppression provisions in sections 200 and 202 of the Criminal Procedure Act. The general provisions relating to suppression orders provided for in sections 207 to 210 of that Act should also apply to suppression orders made under our recommended new provision. As provided in section 210 of the Criminal Procedure Act, the accredited media should have standing to initiate, and be heard in relation to, any application for a suppression order or any application to extend a suppression order. There are advantages in having a consistent approach to suppression orders and the Criminal Procedure Act already provides a model in this area.
2.84There should, however, be one important exception to simply mirroring the Criminal Procedure Act provisions. Suppression orders made under the new provision should always be only for limited duration and never permanent. The justification for suppression here is to protect the right to a fair trial, so when the trial and all rights of appeal are exhausted, there is no justification for continuing to suppress information on that ground. The courts may of course decide that there are other legitimate grounds for permanently suppressing some information, but information should not be permanently suppressed after all proceedings relating to the offence (including appeals) have been completed on the ground it interferes with a fair trial.
2.85For consistency, the offence provision should be the same as that in section 211 of the Criminal Procedure Act 2011. It should provide for strict liability where any person publishes information in breach of a suppression order, punishable by a fine, and a more serious offence, with a higher penalty, where any person knowingly or recklessly publishes information in breach of a suppression order. The penalties for breaches of suppression orders should be similar to those in section 211. We discuss our overall approach to penalties further in chapter 7.223
Central register of suppression orders
2.86The Law Commission’s 2009 report Suppressing Names and Evidence recommended “the development of a national register of suppression orders should be advanced as a matter of high priority”.224 At that stage there was strong support in submissions on that reference for a central register of suppression orders to allow the media to check the terms and status of suppression orders the courts had made. Media organisations submitted that the ability of the media to obtain timely and accurate information from the court in relation to the existence, duration and scope of suppression orders would help to prevent inadvertent breaches.
2.87Following the release of that report, the Ministry of Justice undertook some preliminary work and investigated ways of improving the media’s access to information about suppression orders. The development of a suppression orders register, however, was not considered a priority at that stage and was not pursued.
2.88In 2016, we asked the Ministry for an update on whether it was undertaking any further work on developing a register. The Ministry advised that it had done no further work. The Ministry considered a register would be costly and at that stage did not consider the benefits justified the cost. While we certainly recognise the need for a register to be cost effective, we consider there would be benefits in having a register. They would include avoiding the costs associated with inadvertent breaches of suppression orders and the costs associated with court staff having to check the status of suppression orders. We would therefore encourage the Ministry to review the position periodically.
2.89We also recommend new statutory provisions providing for take down orders where information breaching any temporary suppression order is already publicly accessible on the internet. We recommend it should be an offence for anyone to breach a take down order. At present, courts make take down orders under their inherent authority or implied powers.225 Breaches of these orders are therefore not statutory offences, but are treated as contempt of court. A statutory regime would enable such issues to be addressed comprehensively and provide a straightforward regime for enforcement.
2.90We considered whether the prosecution should be obliged in some way to review what potentially prejudicial information is publicly accessible through the internet before a trial to ensure that it makes an application for appropriate take down orders where they are warranted. We have, however, concluded that it is better to address this, as a matter of practice, in the Solicitor-General’s Prosecution Guidelines than including it in legislation. We think it should be standard practice for Crown prosecutors to make inquiries and consider what information currently in the public domain may be prejudicial. This is a matter that ultimately goes to trial fairness, so the responsibility for reviewing existing information or seeking its removal should not fall solely on the defence.
2.91We acknowledge that take down orders “may not be a perfect or complete solution, and will not prevent the determined internet user”,226 but we consider they will go some way towards minimising the impact of an offending publication. Court orders of this kind will deter the majority of users and thus will be efficient and cost effective. Where the relevant information is published outside New Zealand or on a server hosted outside New Zealand, determined parties in New Zealand will still be able to access the information, but the take down orders should prevent them from lawfully disseminating that information in New Zealand.227
Criminal offence – partial replacement of the common lawTop
2.92We recommend a new offence to replace the common law partially. Under the new provision in clause 14 of the Bill, it would be an offence for any person intentionally to publish information that is relevant to any trial where there is a real risk that the publication of that information could prejudice a fair trial. We intend this new offence to be a statutory replacement for the current publication contempt as it applies to a fair trial. As is currently the case, the mental element of intention would apply only to the act of publication and there would be no requirement to prove any intent to prejudice the trial.
2.93Where the act of publication is somehow accidental, for example, where the wrong version or an earlier draft of an article, which included offending material, was published in error or uploaded by mistake, the court would need to determine whether the mental element was satisfied and the offence committed. There should, however, be defences available to cover situations where there is an absence of fault. For example, where a person has taken reasonable care before publishing, but was genuinely unaware of the existence of a trial, the person should have a defence.
2.94As we have already noted, the common law test for when the protected pre-trial period begins is uncertain.228 The courts have said it begins once the laying of charges is highly likely or imminent.229 This test evolved to cover situations where an alleged offender was known, but had evaded arrest by the Police. For reasons of certainty, however, we recommend that the new offence provision should expressly define the point in time from which the publication of information that could pose a real risk of prejudice to a fair trial will apply. We consider that it should be the earliest clearly identifiable date so recommend that the prohibition on publication should apply from the time a person is arrested.
2.95We consider that the new offence provision should replicate the current broad approach in terms of who can potentially be charged in respect of a publication. Currently, at common law, all persons who contribute to the publication can potentially be prosecuted for contempt.230 In the case of the news media, this includes the media company, the editor and the reporter involved.231 In practice, however, it is rare for contempt proceedings to be brought against them all, and in some the media company has accepted responsibility for the reporter’s actions.232 The new offence in clause 14 of the draft Bill is intended to continue to cover everyone who contributes to the offending publication. We consider that whether or not any person involved in the publication should be charged with the offence should be a matter for prosecutorial discretion exercised in accordance with the Solicitor-General’s Prosecution Guidelines.
2.96Digital media and online publication on websites have, however, raised questions around whether distributors such as online hosts should be liable for content whether they had knowledge or not. We consider that distributors (including online hosts) should have available a defence if they had no knowledge that the publication contained the offending material and they had taken reasonable care. Clause 14(4)(b) of the Bill reflects this.
2.97For reasons we explore later in chapter 7,233 we have reached the view that Parliament should not completely abolish the common law. Rather, the common law should have a residual role in respect of areas not covered by the recommended new offence. This addresses any concern that abolishing the common law entirely could leave a gap in respect of publications that affect civil proceedings. As we discuss later, the High Court should retain its inherent jurisdiction to consider publications that may constitute contempt of civil proceedings and interfere with access to the courts or undermine public confidence in the courts.
R1 For the purpose of preserving the right to a fair trial, a new statutory provision should be enacted prohibiting publication or reporting of an arrested person’s previous convictions and any concurrent charges. The provision should require the pre-trial or trial court to keep the prohibition under review and authorise the court to lift, extend or vary the prohibition as necessary in any particular case. The prohibition should apply from the time a person is arrested and only where the person is arrested for an offence for which he or she is liable to be tried by a jury (a category 3 or 4 offence).
R2 A new statutory provision should authorise a court to make an order postponing publication of other information if the court is satisfied that this appears to be necessary to avoid a real risk of prejudice to a fair trial. The court might make such an order at any time after a person is arrested and before the trial has been completed and must make it for a limited period, not extending beyond the completion of the proceedings.
R3 A new statutory provision should authorise a court to make an order that an online content host take down or disable public access to any specific information covered by the statutory prohibition in R1, or any suppression order made under R2.
R4 A provision modelled on section 210 of the Criminal Procedure Act 2011 should give members of accredited media, and any other person reporting on the proceedings with the permission of the court, standing to initiate or be heard on any application for an order in respect of R1 to R3 or any application to renew, vary or revoke any order.
R5 Subpart 7 of Part 6 of the Criminal Procedure Act 2011 should be amended to give a right of appeal against any decision to make or refuse to make a suppression order under R2 or R3 or to renew, vary, or revoke a suppression order under R2 or R3 or lift, extend or vary the prohibition in R1.
R6 A new statutory offence provision modelled on section 211 of the Criminal Procedure Act 2011 should provide:
(a) It is an offence for any person, knowingly or recklessly, to publish material in breach of the statutory prohibition in R1 or any suppression order under R2 or take down order under R3.
(b) The offence in (a) should be punishable:
(i) in the case of an individual, by a term of imprisonment not exceeding 6 months or a fine not exceeding $25,000; or
(ii) in the case of a body corporate, by a fine not exceeding $100,000.
(c) It is a strict liability offence for any person to publish material in breach of the statutory prohibition in R1 or any suppression order under R2 or take down order under R3.
(d) The offence in (c) should be punishable:
(i) in the case of an individual, by a fine not exceeding $10,000; or
(ii) in the case of a body corporate, by a fine not exceeding $40,000.
R7 There should be a new offence to replace the common law contempt of publishing information that interferes with a fair trial, which should be abolished: see R61 below. The new offence should apply from the time a person (the arrested person) is arrested for an offence for which he or she is liable to be tried by a jury (a category 3 or 4 offence). Under the new offence provision, a person would commit an offence if:
(a) he or she intentionally publishes information that is relevant to an arrested person’s trial; and
(b) there is a real risk that the publication prejudices the arrested person’s right to a fair trial.
R8 The maximum penalty for the offence in R7 should be a term of imprisonment for up to 6 months or a fine not exceeding $25,000, or in the case of a body corporate a fine not exceeding $100,000.
R9 It should be a defence for a person prosecuted for the offence in R7 to prove on the balance of probabilities that:
(a) after taking all reasonable care the person was unaware and had no reason to be aware of the possibility or existence of the trial; or
(b) the person was the online host or distributor of the publication and after taking all reasonable care he or she was unaware and had no reason to be aware that it contained the information that created a real risk of prejudicing the arrested person’s right to a fair trial; or
(c) the publication was a good faith contribution to a discussion of public affairs; or
(d) the publication was a fair and accurate report of court proceedings held in public and published at the time and in good faith.
R10 Appeals in respect of the offences in R6 and R7 should be under subpart 3 (Appeals against conviction) and subpart 4 (Appeals against sentence) and not under subpart 5 (Appeals against finding of or sentence for contempt of court) of Part 6 of the Criminal Procedure Act 2011 because the offences in R6 and R7 are ordinary offences and not contempt of court.
218Siemer v Solicitor-General , above n 119, at ; Television New Zealand Ltd v Solicitor-General, above n 120, at 3.
219Contempt of Court Act 1981, s 2(3) and Schedule 1.
220See: David Eady and ATH Smith Arlidge, Eady and Smith on Contempt (4th ed, Sweet & Maxwell, London, 2011) at [5-62] and [5-67]–[5-103]; Attorney-General v News Group Newspapers Ltd plc  QB 110,  2 All ER 906; Attorney-General v Sports Newspapers  1 WLR 1194 (QB),  1 All ER 503.
222Criminal Procedure Act 2011, s 6(1): a category 1 offence is punishable with a maximum penalty of a fine only, and a category 2 offence is punishable by a term of imprisonment of no more than two years or a community-based sentence.
226ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011) at [2.69].
227Police v Slater  DCR 6 at –; Solicitor-General of New Zealand v Krieger  NZHC 172 at . Mr Krieger provided hyperlinks to overseas websites. The Court considered that disclosure of the information occurred in New Zealand when people downloaded the information.
231Cheer, above n 133, at 553. There have been a few cases in which editors and reporters were personally proceeded against for contempt; see for example Solicitor-General v Fairfax New Zealand Ltd, above n 130, where the editor of the Dominion Post, Timothy Pankhurst, was charged as well as the publisher.
232See for example, Solicitor-General v Smith, above n 141, at  where Radio New Zealand accepted responsibility for the statements of its presenter Ms Linda Clarke.