14 Dec 2018

Proposed suppression law hard to enforce - lawyer

3:06 pm on 14 December 2018

Jurors who do their own internet research could face serious criminal charges under a proposed law change currently before Parliament.

Grace Millane

Grace Millane Photo: Supplied / Facebook

However, the mass breach of the suppression order in the Grace Millane case shows this would be impossible to enforce, according to one international law expert.

The man's name has appeared in overseas media and there have been more than 100,000 searches of his name on Google, despite a suppression order.

A barrister with LawAid International, Thomas Harré, said in this particular case; "the cat's out of the bag".

"Taking this person's name off all the sites would be an impossible task, and it's arguable you now have a tainting of the jury pool.

"All the people who could potentially be called to serve may now have an idea of who he is and have formed ideas about him."

The case clearly showed the limits of the law against all pervasive social media and the might of Google's search algorithms, he said.

Mr Harré said it was "naive" to think jurors were not doing internet searches.

"There's probably only so far a judicial direction can go before we all realise we're asking people not to look at the elephant in the room.

"The law is not dealing with this well at the moment, it will need to be addressed. We just need to come up with some kind of solution to the fact that jurors google.

"Is our civic education in New Zealand adequate for this? Do people understand the implications of a suppression order and what constitutes a fair trial?"

Public law expert Professor Tony Smith - who wrote the Law Commission's recommendations that formed the basis of the proposed law change on contempt of court - said name suppression was "a contentious issue".

"This is mainly because of suspicions that some people get their names suppressed too readily."

The tragic case of Grace Millane clearly showed, however, that name suppression was important for justice in some situations.

Professor Smith said some of the information about the accused in the Millane case in the public domain could be viewed as prejudicial and his lawyers could argue he would not get a fair trial.

"That does get in the road of managing a trial if you're a judge when the first thing a defence lawyer says is 'I don't think my client can get a fair trial'."

Google has not so far responded to requests for comment.