Report on Justice website name suppression breaches

Justice Minister Simon Power today released a report on the part the Ministry of Justice played in the publication of names of some victims on the Judicial Decisions Online website.

The report was compiled by John Marshall QC, immediate past-president of the Law Society.

Mr Power asked for the report after judicial sentencing notes containing the names of sexual abuse victims were published on the Judicial Decisions Online website in breach of the statutory prohibition regarding publication of such names, or identifying particulars of complaints.

Mr Marshall looked at how the Ministry of Justice processes judicial decisions before publishing them online, and the interface between the judicial processes and the Ministry. He was not asked to review the judicial decision-making processes associated with the publication of decisions. That is a matter for the judiciary.

Mr Marshall's report says judgments are sent by judges to the Ministry with an indication as to whether they should be published on the website. Judges anonymise judicial decisions and use suppression orders when appropriate to protect the privacy of parties. They also 'flag' that suppression applies by inserting a banner at the top of the decision.

Before publication, each judgment is checked by Ministry staff to ensure it complies with name suppression orders and statutory prohibitions.

The website’s database contains 1500 sexual abuse decisions and, following a review by the Ministry, 10 of them (including the original breach) were identified as likely to be in breach of the statutory prohibition. Mr Marshall notes that of the 10 identified as likely to be in breach of the statutory prohibition, none had a suppression banner or ‘flag’ at the top.

But he said it was the responsibility of the Ministry of Justice, as the website publisher, to "carefully read and check them [the judgments] to ensure suppression requirements were complied with, whether or not there were 'flags'."

He suggests improvements to the process by which the Ministry publishes judgments in sex cases, including that all such judgments are thoroughly checked, whether or not a suppression order is made.

Mr Power welcomed the report and the immediate steps the Ministry has taken since the breach was identified.

“I’m pleased the Ministry has taken this matter seriously, including temporarily suspending publication to the Judicial Decisions Online website, and reviewing training of their staff. I also support the Ministry considering the fundamental question of whether they should continue to publish judges’ decisions online.

"It's clear from this report that there needs to be work done on the policy and memorandum of understanding between the judiciary and the Ministry.

"They need to get together to sort out a foolproof system and I know the Ministry is working with the judiciary on establishing appropriate protocols.

"The relationship between the Ministry and the judiciary, where that responsibility lies, and who can inform the other's decision-making, are things that have to be sorted.

"Though the initial decision to publish lies with the judge, there is an obligation for the Ministry, under the Criminal Justice Act, not to publish if they identify a potential breach.

"They need to be more careful about that process.

"Dealing with the most high-profile case, Mr Marshall noted that normally the judgment in such a case would be sent to the Ministry with a 'flag', or banner, noting that the statutory prohibition on publication of the names or identifying particulars of the victims applied.

"This was not done. However, the Ministry should still have picked up the fact that the judgment contained the names of victims and sent it back to the court for anonymisation.

"The Chief High Court Judge, Helen Winkelmann, said she would review this issue from the judges' side, and I look forward to reading that report when it becomes available.”

John Marshall’s report can be found here.