Justice for Grace Millane: a new Commonwealth contempt framework? – Erica Henshilwood

27 11 2019

The New Zealand Minister of Justice, Andrew Little, has called for an international judicial contempt framework to be agreed between NZ, the UK, Australia and Canada in an effort to address the (in)effectiveness of reporting restrictions in criminal trials today.

Mr Little’s call for an international framework follows alleged breaches, by Google and by foreign press, of a suppression order (reporting restriction) made by a NZ judge in the Grace Millane murder trial.

In December 2018 British backpacker Grace Millane was tragically murdered in New Zealand. Last week, following one of the most highly publicised murder cases in NZ’s history, her murderer was convicted. Despite the jury returning a guilty verdict in only 5 hours, Grace’s killer still cannot be identified in New Zealand because of a court suppression order put in place shortly after the Defendant was charged which the Judge has ruled will remain in place until further notice for reasons which have not been revealed.

Suppression orders such as this one, preventing publication of the identifying details of people charged with, convicted or acquitted of an offence are discretionary orders made by a Judge pursuant to the NZ Criminal Procedure Act, when the Judge is satisfied that certain conditions are met.

As with any order or judgment of any court, the suppression order can only restrict what is published within the NZ jurisdiction, and does not extend to what international media publishes outside of NZ. The question of how contempt laws fit with news reporting on the internet and across social media platforms and search engines has become a topic of much discussion by the NZ government.

The investigation into Grace’s murder began in December 2018. Shortly after her body was found, her now convicted murderer appeared at Auckland District Court and was granted interim name suppression.  Three days after the suppression order was granted, Google sent an automated email to NZ subscribers of its Google Trends service naming the accused. British media outlets also published reports (which were briefly accessible by the NZ public) naming the accused. At the time the Google Trends email was sent out to subscribers, Google was not aware of the suppression order. In fact, it received a copy of the order the following day (four days after it was made) and says it took immediate action to ensure no recurrence of the action would take place.

NZ Police wrote to Google warning them about the suppression order and seeking to have search results in which the accused was named removed from the internet. Google suspended its Trending Emails service in NZ, and a meeting then took place between Google representatives and Justice Minister Little, following which Google agreed to review its processes to see what could be done to ensure the same did not happen again.

On 11 December 2018, Little and the NZ Police also issued a warning to the NZ public and to the media that it was unlawful to name or identify the accused and that there would be serious consequences for anyone who shared that information in NZ.  Addressing the British media reporting, on 11 December 2018 Little said:

“The international media, particularly the British media are not helping the Millane family. And if they are concerned about doing justice for the family, they should stop publishing details,” 

“It’s bad enough if an innocent person goes to jail, it’s equally an injustice if a guilty person gets to walk free because the justice system has failed,” he said.

I would just say to the British media, we are dealing with a family from their country, it is their citizen who has been lost in New Zealand to this homicide here in New Zealand, we want to do justice for the family. Justice means the person accused is held to account … Things that happen overseas that undermine this are an unhelpful action for the family.

It is understood that those British media outlets which had published certain information in December 2018 swiftly “geo-blocked” the reports so that they could not be accessed by anyone in NZ.

In February 2019 a hearing took place in the Auckland High Court at which it was determined by Mr Justice Moore that the suppression order should remain in place, with the reasons and Moore J’s judgment also suppressed.  On 5 July 2019, Google sent a letter to Little (which it has published online here) apologising again and outlining the steps taken by Google to ensure no recurrence of the issue.

Meanwhile, the criminal proceedings against Grace’s then murder-accused remained of intense international interest.  The murder trial took place earlier this month, and on Friday 22 November the accused was found guilty by the jury. Justice Moore, the trial judge, has ordered, however, that for the time being the suppression order shall remain in place.  Following the verdict on Friday, there were reports that various social media users in NZ had breached the order. Detective Inspector Scott Beard said in a statement:

“Police have been made aware today that the defendant in the Grace Millane homicide has been named on social media accounts in New Zealand although the homicide trial concluded yesterday… Although the homicide trial concluded yesterday, a suppression order which prevents naming the defendant remains in place and will do so until lifted by the court…While we appreciate the public feeling around this case, we do want to remind the public that it is an offence to breach a court order such as a name suppression – this includes naming someone on social media“.

Since Friday’s verdict, various British media outlets have published the Defendant’s name in online reports, although it is believed that these reports are all geo-blocked so that none of information is published in the New Zealand jurisdiction.

However, it would seem that a geo-blocking solution is not enough to satisfy Justice Minister Andrew Little. In August 2019, several months before the trial began, Mr Little told NZ media outlets that NZ government officials intended to work with Australia, the UK and Canada to create an agreed framework for enforcing contempt orders in those jurisdictions, after he attended meetings with UK Home Secretary Priti Patel, Canada’s Minister for Public Order Ralph Goodale, and Australia’s Minister for Home Affairs Peter Dutton, to raise the idea. Mr Little is reported to have told NZ media outlet Newshub “I’ve now asked officials in New Zealand to work with officials in those other countries to see whether we can pull something together“.

The framework could see publications in those countries “brought to book” for breaching name suppression orders, Mr Little said.  A type of “mutual assistance“, he said, was currently enforced in other legal areas, and a framework to encompass name suppression orders should also be agreed. Little did not elaborate on how the framework would work, but presumably it would allow for local proceedings to be taken against any publisher which publishes information which is the subject of a suppression order / reporting restriction in one of the other participating foreign jurisdictions.

Analogies can be drawn with the Court’s concerns in this jurisdiction in PJS v News Group Newspapers Ltd ([2016] 1 AC 108), albeit that was a civil privacy case and not a criminal one.  In PJS the claimant’s identity and private information was already widely available online, and the publisher’s position was that no order suppressing publication of the claimant’s identity should be granted because it was of little practical value. The High Court and Court of Appeal agreed with the publisher. The Supreme Court, however, did not; it granted PJS a permanent injunction because it felt that removal of the injunction order would open the floodgates by allowing front page reporting in English newspapers and therefore much wider dissemination of the private information in question.

Clearly because of the widespread publicity potential of digital platforms, there is a tricky rebalancing exercise which the courts – both civil and criminal – and now governments are having to grapple with. On the one hand, there is the judicial concern to enforce orders, taken in context of the reality that information can be disseminated globally, spreading like wildfire. On the other hand, it is the starting position that the order of a court in one jurisdiction cannot (and should not) bind the courts or parties in another.

The formation of an international framework for suppressing information could pose an unprecedented restriction on the media’s Article 10 rights. This is particularly concerning bearing in mind that the issues underpinning suppression orders, such as risk of prejudicing a fair trial by infecting the minds of jurors, are not engaged for members of the public in the other foreign jurisdictions. This is a particular concern if the threshold for international publication is set at the level of the toughest jurisdiction. Given geo-blocking is a method used commonly – in particular by US publishers – to ensure compliance with the English laws, it will no doubt be of concern to many to learn this method may not be enough. When discussing it in August 2019, Little indicated he thought progress on the international framework proposals would be made before the end of the year: watch this space…

Erica Henshilwood is a Senior Associate at Simons Muirhead & Burton LLP and is qualified to practice in New Zealand and Australia.


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