New Zealand Law Students Journal
Last Updated: 14 January 2013
NAME SUPPRESSION, THE MEDIA AND JUVENILE OFFENDERS
The purpose of this paper is to examine the law surrounding name
suppression in relation to children who commit crime. In
particular it will
focus on those young offenders who are tried in the adult courts, where name
suppression is purely discretionary.
I will examine some well known cases in
both New Zealand and the United Kingdom to illustrate that name
in the best interests of both the offender and the
public, in cases involving serious juvenile offenders.
Name suppression is a prohibition on publication of an
offender’s name and may be automatic or discretionary.1 In the
case of automatic name suppression it is an offence to publish the
names of certain persons, or particulars likely
to lead to their
identification, in a report of court proceedings. No direction needs to be given
by the court, as the names are
automatically suppressed.2 Name
suppression is automatic in the Youth Court. In all other courts, section 140 of
the Criminal Justice Act3 gives the court power to order suppression
of name. So varied are the circumstances that the legislature has not
wise to lay down rules to regulate its exercise.4 It
is argued that name suppression opposes the principle of open justice and
freedom of expression, however, as I will demonstrate,
any so called
restrictions it places on these principles are minimal at best, and reasonably
Under the Criminal Justice Act the court is required to
* Candidate for BCom; LLB (Hons), University of Auckland.
1 J. Burrows and U. Cheer. Media Law in New Zealand (5th ed.) Oxford University Press, Auckland, New Zealand, 2005, 333.
3 Criminal Justice Act 1985 (NZ), s 140.
4 Burrows and Cheer, above n 1.
The New Zealand Law Students’ Journal (2007) 1 NZLSJ
opposing interests. Fisher J summarised these as follows:
Supporting suppression are the accused’s privacy interests, the
presumption of innocence, the risk of irrecoverable harm
ultimate acquittal, the possibility of serious harm to family and others
associated with the accused and the
risk that a fair trial could be indirectly
affected by public pressure and personal stress of identification prior to
publication are the public interest in freedom of
information, the importance of allowing the public to know what is going
in their own public institutions, the possibility that identification will
encourage other relevant witnesses to come forward,
the removal of unfair
suspicion from others, and protection of the accused against arbitrary
and secret oppression by
I believe people underestimate the power of the media. Many people take what
they read in the paper and see on television as the
absolute truth. The media
have quite an effect on public attitudes and opinions towards juvenile justice.
Media portrayals of crime
are also not always accurate. I feel this has
resulted in increasingly punitive attitudes towards juveniles, treating
as adults and not as the children they are.
B. The New Zealand Experience
The Michael Choy trial was New Zealand’s most notorious and well known serious juvenile offender case.6 Eight accused faced charges of murder, aggravated robbery, attempted aggravated robbery and theft. Of the eight, six were children or young persons as defined by the Act.7
One of them was Bailey Kurariki, who, aged twelve at the time of the
incident, is now New Zealand’s youngest convicted killer.
Due to all
the accused and especially Kurariki’s age there was intense media
interest in the case. All eight
applied for continuation of name
suppression on committal from the Youth Court to the High Court for trial.
granted it for Bailey Kurariki (the youngest) and also for an
accused who was facing a less serious charge of attempted
5 R v Whatarangi Rawiri, Casie Rawiri, PK, AP, RR, DH, JK and BK (3 July 2002), HC, Auckland T014047, Fisher J at pp 3-4.
6 See Rawiri, above n 5.
7 Children, Young Persons and their Families (CYPF) Act 1989 (NZ)
Name Suppression, the Media and Juvenile Offenders 353
aggravated robbery. However following conviction, name suppression was
lifted and the media onslaught continued.
Bailey Kurariki has since become somewhat a ‘celebrity’
in his own right. In an article entitled “Young
Killer No Star”
the Southland Times writes “Bailey Kurariki is right about one thing. He
is a celebrity.”8 The paper describes Kurariki as being
a “big noter” at the Kingslea Residential Centre in
states that he is aware his picture is on the front page of the
newspaper and that other inmates want his autograph, the effect
of this is
that “he has become puffy in the knowledge that whatever else has
happened to him, at least now
he seems to matter to people.” The
article quotes Kingslea Residential Centre manager, Shirley Johnson as saying
Kurariki’s high profile after his crime is sending a terrible message
to other young people. The paper goes on to note that
“of course there is
public outrage at this latest revelation that he is enjoying his new celebrity
status.” I think it
seems ironic that it was this attention and
‘outrage’ that caused his perceived heightened status in the
This brings me to the question of whether name suppression
should have been lifted. Does open justice always ensure justice is
should public “interest” override the interests of the
This paper will explore whether, in the case of juvenile offenders,
judges should in fact have discretion in ordering
under the Criminal Justice Act.9 I will argue that the principle of
open justice can cause more harm than good in situations involving young
offenders. It will
further be argued that name suppression orders do not
actually restrain open justice in practice, nor inhibit the public
interest in media reporting. It is suggested that our current obsession with
open justice and wide publication of the identities
of serious young
offenders may actually be causing higher rates of recidivism and crime, and that
this “naming and shaming”
goes against the principles of youth
justice in New Zealand. It is also proposed that to ensure a fair trial, all
be tried in either private adult courts or the Youth Court. The
paper will further illustrate that it is the media who
8 ”Young Killer is No Star” The Southland Times (Southland, New Zealand, 2 September
2002), page 6.
9 Criminal Justice Act 1985 (NZ), s 140.
are contributing to the punitive nature of society by creating a false
impression of juvenile delinquency.
B. Open Justice
One of the most prominent and widely used justifications
for disallowing name suppression is the principle of open
justice. Burrows and
Cheer state that the starting point for the courts is always the
principle of openness.10 The Privy Council in McPherson v
McPherson 11 reflected on the question of what is open
justice. Lord Blanesburgh regarded public access as a fundamental
the openness of proceedings. He stated:
[t]he actual presence of the public is never necessary [...] the court
must be open to any who may present themselves for admission.
The remoteness of
the possibility of any public attendance must never by judicial action be
reduced to the certainty that there
will be none.
The principle is entrenched in Article 10 of the Universal Declaration of
Human Rights which provides for a “fair and
of criminal charges,12 as well as in Article 14(1) of the
International Covenant of Civil and Political Rights13 which
stipulates: “...In the determination of any criminal charge against him
[...] everyone shall be entitled to a fair
and public hearing.”
Baylis14 states by including “public” in Article
14 it may in modern terms be reasoned to encompass radio and
Baylis15 describes Article 1416 as allowing
some exceptions to the
10 See Burrows and Cheer, above n 1.
11 McPherson v McPherson  AC 177, this was a case concerning the legality of divorce proceedings which had taken place in the Judges’ law library. One of the grounds the applicant appealed on was that the hearing had not taken place in an open court.
12 Universal Declaration of Human Rights 1948, Article 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
13 International Covenant of Civil and Political Rights 1976, Article 14(1).
14 C. Baylis “Justice done and Justice seen to be done – the Public Administration of
Justice” (1991) 21 VUWLR 177.
16 See ICCPR, above n13
general principle of open justice. She interprets it as affirming that at
the very least open justice requires the actual judgment
of the court to be made
public, except in very limited circumstances.17 However the
wording of the Article raises an interpretation question as to whether
“judgment” means the judges’
reasoning and the finding,
or just the decision or judgment. If we take a strict black letter approach to
will limit the requirements of public justice by a
much greater amount, to perhaps just the actual judgment. Baylis18
goes on to note that the Criminal Justice Act19 clarifies
this, in that in the criminal context, the requirement of publicity is that
only the decision and sentence need to be made
public. It states that:
The announcement of the verdict or decision of the court [...] and the
passing of sentence shall in every case take place in public;
but if the court
is satisfied that exceptional circumstances so require, it may decline to
state in public all or any of
the facts, reasons, or other
consideration that hit has taken into account in reaching its decision or
verdict or in
determining the sentence passed by it on any
This seems to imply that it is acceptable for the trial or hearing to be held
in private or restricted access under the open
Baylis20 also adds that Article 14 is framed in such a way to entail
that the publicity principle protects only an individual’s
a public hearing. This could mean that the public and media could be excluded if
the parties wanted to give up this right.
She does however state that in New
Zealand it has, by and large been accepted that there is not only the
to a public hearing but also generally a
public entitlement of access to proceedings.
In relation to the granting of name suppression under the Criminal
Justice Act,21 the courts have stressed that there is always a
17 Ibid, Article 14: “...any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”
18 See Baylis, above n 14.
19 Criminal Justice Act 1985, (NZ) s 138(6).
20 See Baylis, above n 14.
21 Criminal Justice Act 1985 (NZ), s 140.
presumption in favour of openness in reporting. In R v Liddel the
The starting point must always be the importance in a democracy of freedom
of speech, open judicial proceedings, and the
right of the media to
report the latter fairly and accurately as ‘surrogates’ of the
The Court of Appeal also emphasized it was to be departed from only for
“compelling reasons” or “very special
circumstances”. In Lewis v Wilson & Horton the Court of
Appeal said that “the balance must come down clearly in favour of
suppression if the prima facie presumption in
favour of open reporting is to be
Baylis24 states that the public administration of justice has
developed to be viewed as a fundamental trademark of a democratic society, and
that the overriding concern is to ensure that justice is done, both between the
parties and in the wider sense. Slevin25 discusses the importance of
publicity, as having long been regarded as society’s most
effective guarantee of judicial
accountability and that therefore, the
principle of open justice should only be compromised for the most
What is in the public interest however, is not always
certain. It has been held in cases such as H v Police26 that
there is a public interest in the offender being rehabilitated
anonymously and in some circumstances this will
prevail over any other
interest the public may have.
In analysing the reasons for the publicity principle Baylis27
examined its historical basis. She noted that it was claimed by Chief
Justice Burger in
22 R v Liddell  1 NZLR 538 at p 456.
23 Lewis v Wilson & Horton Ltd  NZCA 175;  3 NZLR 546 at 559. Lord Stein also said ‘from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be very much a disembodied trial’: Re S (a child)  UKHL 47;  4 All ER 683 at 697.
24 See Baylis, above n 14.
25 G Slevin “Name Suppression, Questioning the Law Commission’s Reasoning” (2004) NZLJ 223-224.
26 H v Police  NZHC 299; (1989) 4 CRNZ 215.
27 See Baylis, above n 14.
Richmond Newspapers, Inc v Virginia28, that throughout the
history of the common law courts, there has always been a presumption
that the public can attend
trials, and therefore the public must be allowed
to continue to attend. However, using a historical background as
rationale may be criticised. Resnik claims that “simply because we have,
in the past, either included or excluded the public
does not confirm we should
do the same today.”29 Customs may change over time.
An example of this is that historically family and juvenile matters
were heard in open
courts. Baylis30 notes that the perception of the
morality of these separations has changed, so that today the public has
very limited access
to both the Family and Youth Courts. What was
traditionally an area of public access has changed as public attitudes
have developed. Puplick31 thinks that the concept of open justice
has also been changed by the advent of the internet. This has meant that the
of time and space, which traditionally made open justice
socially acceptable, have been abolished and replaced with a potential global
audience, and that this is perhaps reason for restricting it.
Various benefits and the theoretical underpinning of open justice have been
said to include; enhanced fact finding, improved
quality of testimony,
to induce unknown witnesses to come forward, and to act as a deterrent and a
punishment.32 It has been suggested that publicity encourages
judges to educate themselves in public morality and thereby avoid public
and educates the public about the legal system as well as social
problems. Baylis33 notes that because ignorance of the law is no
excuse, there must be some way for the public to know what the courts are
Justice must be seen to be done. An open justice system
stops the public from building up an imaginary and uncomplimentary
the courts.34 Open justice may be said to lead to people having more
trust in the system.
28 Richmond Newspapers, Inc v Virginia  USSC 154; 448 US 555, 580 (1980), 573.
29 J. Resnik “Due Process: A Public Dimension” (1987) 39 U. Florida L.T. 405, 409.
30 See Baylis, above n 14.
31 C. Puplick ”Open Justice to Whom?” (2002) 6 TJR 95.
32 C. Davis “The Injustice of Open Justice” (2001) 8 JCULR 92.
33 See Baylis, above n 14.
34 See Burrows and Cheer, above n 1.
The key to the benefits listed above however, is not the openness of the
court proceedings, but the publicity given to them. The
majority of people are
totally uninterested in court proceedings, open or closed, until such
proceedings affect them personally.
Without media coverage of court cases, few
people would have knowledge of the court system and processes.35
Lord Diplock in Attorney General v Leveller Magazine36
agreed that the media play a function in the notion of a public justice
system. He described this role in that the media circulate
and broadcast reports
of court proceedings to society, meaning a far greater number of the public will
learn about the court hearing.
Lord Denning certainly agrees with this
proposition, he states:37
A newspaper reporter says nothing but writes a lot. He notes all that goes
on and makes a fair and accurate report of it. If he is
to do his work properly
and effectively we must hold fast to the principle that every case must be
heard and determined in open
court. It must not take place behind locked doors.
Every member of the public must be entitled to report in the public press all
that he has seen and heard.
This often means that what people know is determined by individual reporters
and what news media outlets determine newsworthy enough
to cover. It takes us
back to what Lord Justice Cooke said in R v Liddel38
when he described the media as surrogates of the public.
The word surrogate is defined in the Oxford English Dictionary as meaning “a person who stands in for another in a role or office.”39 So is this really true, do the media really act as a substitute or stand in for the public in court? Clausen40 argues that by determining where the public interest lies and what the public interest is when considering section 140 applications,41 the courts are effectively controlling what the media will report to the public. In doing so, the courts are usurping
35 See Davis, above n 32.
36 Attorney General v Leveller Magazine  AC 440, 450.
37 L.J. Denning “A Free Press” (1984) 17 Bracton LJ 13.
38 See Liddell, above n 22.
39 C. Soanes Oxford English Dictionary (Oxford University Press, Oxford, 2002) at p843.
40 B. Clausen (1998) “Redefining and Restricting the Veil of Anonymity: Name Suppression for Defendants in Criminal Proceedings.” Dissertation LLB(Hons), University of Auckland, 1998.
41 Criminal Justice Act 1985, (NZ) s 140.
the media’s roles as ‘surrogates of the public.’42
Davis,43 on the other hand, contends, and I agree,
that the media are commercial organizations driven by commercial
and not non-profitable bodies there to serve the public good. She
argues that the priority for many media companies is profit, not
the welfare or
education of the community, and suggests that to say the media represent the
public in court “is naïve
at best.”44 When the
media dispute an application for a name suppression order, it may be that the
incentive for this is more likely to be related
to its own vested
business-related interests rather than a drive to serve public interest.
Davis45 goes on and describes large media organizations as powerful
opponents, due to the economic and legal resources on hand to them,
their easy access to a most effective instrument, the media, for
influencing politicians and the community to support
their cause, often dressed
up as a ‘public interest of open justice argument.’ Baylis46
describes negative aspects of the media’s role as
‘surrogates’ of the public as including when reports of proceedings
are sensationalized, or when pre-trial publicity may put at risk the fair trial
of the accused. She also notes that as publicity
may have a punitive effect and
given that the media do not cover all trials without bias, this arbitrary
coverage of cases does not
sit well with the concept of every person being
treated equally by the justice system. Baylis states “If the amount
publicity that a particular person is likely to receive means that they are
punished to a much greater extent that would ordinarily
be the case, this may
justify a permanent name suppression order.”47
The question then is whether open justice really is impeded by suppression orders. Davis48 proposes that name suppression may be seen as an effective compromise between the rights of the media and the rights of individuals. I think this is especially so in the case of young offenders who because of the seriousness of the charge, are in the adult courts, but would otherwise have their name suppressed. Name
42 As stated in Liddell, above n 22.
43 See Davis, above n 32.
44 Ibid, at p 99.
45 See Davis, above n 32.
46 See Baylis, above n 14, at 180.
47 Ibid, at 206.
48 See Davis, above n 32.
suppression orders do not affect the ability of the media to publish or air
their story, including those sensational facts their readers
or listeners want
to know, nor do they go to the extent of closing the court to everyone, as
is the practice of the Youth Court.
This was recognized in the case of R
v his Honour Judge Noud: Ex Parte McNamara49 where
Justice Williams acknowledged the significant distinction between
closing courts and suppression orders. The public
therefore are still informed
of the pressing social problems and court processes which are in the
Although the open justice principle is fundamental to our legal systems, it
is suggested that the theoretical basis of the principle
perception of the role of the media in its implementation
are unsound.50 In the case of Bailey Kurariki51, public
interest, including publication of the names of parties before the court, has
prevailed over private interests. I think
it is doubtful in most cases whether
there is a “public interest” in knowing the identities of
parties before a
court, although it is undoubtedly interesting to the
public. This is especially true in cases of serious offending by young persons
which, because of the rarity and traditional ‘innocent perceptions’
of children, attract significant media attention.
I would suggest that in the
case of juveniles the ultimate “public interest” should lie in their
rehabilitation and reintegration
back into the community and to avoid criminal
behavior carrying on into adulthood.
C. Children: A special case?
This paper suggests that juvenile delinquents are a special case and that the
court should not have discretion to order name suppression
140.52 All criminal trials involving juveniles should
be conducted in private or if in public, the media should not be permitted
publish any name or identifying information. It has been recognized that
children do not have the same developmental levels as
adults and statistics
have shown that a high degree of violent offending amongst
49 R v his Honour Judge Noud: Ex Parte McNamara  2 Qd R 86.
50 See Davis, above n 32.
51 See Rawiri, above n 5.
52 Criminal Justice Act, 1985, (NZ), s 140.
youths tails off once offenders reach their twenties.53 In a recent Court of Appeal decision Justice Hammond referred to a report by registered consultant psychologist, Dr Ian Lambie, which set out the reasons as follows:54
It is widely accepted that adolescents do not possess either the same
developmental level of cognitive or psychological maturity
(Steinberg & Scott, 2003). Adolescents have difficulty regulating their
moods, impulses and behaviours
(Spear, 2001). Immediate and
concrete rewards, along with the reward of peer approval, weigh more heavily in
and hence they are less likely than adults to think through
the consequences of their actions. Adolescents’ decision-making
capacities are immature and their autonomy constrained. Their ability to
make good decisions is mitigated by stressful,
unstructured settings and
the influence of others. They are more vulnerable than adults to the
influence of coercive circumstances
such as provocation, duress and threat
and are more likely to make riskier decisions when in groups.
desire for peer approval, and fear of rejection,
affects their choices even without clear coercion (Moffitt, 1993).
because adolescents are more impulsive than adults, it may take less of a
threat to provoke an aggressive response from an
Hammond J described the report as being grounded on “well accepted
professional literature.”55 Wolff, Alexander and
McCall56 contend that as children get older their maturity of
reasoning, and their grasp of moral issues increase and that this point
inadequately recognized in the law today.
The impact of peer pressure can be seen in the James Bulger case.57
Robert Thompson was seen to be the ringleader, Venables followed
53 R v Slade & Hamilton (28 February 2005) CA245/04, CA266/04, Anderson P, Hammond and William Young JJ – in this case Slade and Hamilton, along with a third offender violently attacked a passer by, who later died of massive head injuries. Their appeal concerned their sentence of 17 years and the application of Youth Justice Principles.
54 Ibid, Hammond J at para .
55 See Slade, above n53, per Hammond J at para 45.
56 S. Wolff, R Alexander & A. McCall Smith “Points of Law: Child Homicide and the Law; Implications of the Judgments of the European Court of Human Rights in the Case of the Children who Killed James Bulger” (2000) 5 Child Psychology and Psychiatry Review 133.
57 R v Secretary of the State for the Home Department, Ex p
Venables, Ex p Thompson  AC
lead. Both were convicted of manslaughter. If children are mentally so
different to adults, then why is it that, in the case of serious
are treated the same? The seriousness of the offence does not make them
any more of an adult, or any less of
a child. The irony is that our youth
justice system does, to some extent, recognize the fact that a child’s
develops as they grow older, but this seems to be ignored
in the case of serious offending. I do not think, as an inescapable consequence
of growing up, that this should be the case for child offenders. It is
contradictory that the principles developed in the Youth
Court are not relevant
to offenders who are still youths, yet in the adult courts.
D. Criminal Culpability of Children
In New Zealand children do not become criminally responsible upon reaching
one specific age, instead there are four separate age
categories to which
different rules apply.58 This is what is known as a graduated
(1) Children under 10 years: No criminal prosecution can be
(2) Children aged 10-13 years: Can only be charged with murder,
manslaughter or minor traffic offences and the prosecution
must prove they knew
their act was wrong or illegal.60
(3) Young people aged 14-16 years: Can be charged with any criminal offence
but usually their case will be heard and decided
in the Youth
(4) Young adults aged 17: Can be charged with any offence
58 Robert Ludbrook Criminal Responsibility of Minors, Brookers Family Law Database (Child Law) <http://www.brookersonline.co.nz.ezproxy.auckland.ac.nz/databases/modus/fami ly/childlaw/DISC-CHILD!21~GRP1.YJ2?tid=8770509 & si=15> at 1 August 2006.
59 Crimes Act 1961, (NZ), s 21.
60 Crimes Act 1961, (NZ), s 22.
61 See Brookers Child Law, above n 58.
and the charges will be heard in an adult Court, namely the
District Court or High Court.62
In New Zealand we have a separate court, the Youth Court which has jurisdiction over any child or young person who commits an offence. The Children, Young Persons and Their Families (CYPF) Act,63 defines
‘child’ as “a boy or girl under the age of fourteen”
and ‘young person’ as “a boy or
girl over the age of
fourteen, but under the age of seventeen.” The Youth Court’s
jurisdiction however, is
not absolute. A child or young person who is charged
with murder or manslaughter is dealt with in the High Court in the same
way as if the charge was brought against an adult.64 For those
offences classified as ‘purely indictable’ offences, which are
those at the more serious end of the spectrum,
for example sexual violation
or aggravated robbery, if a child or young person pleads ‘not
guilty’ and the Youth
Court considers there is sufficient evidence
for the matter to be tried, it may decide whether to commit the offender to
the District or High Court for trial, or to hear the matter itself.65
Alternatively the offender may elect to have their case heard by
trial in which case it would most likely be heard in
Court.66 In summary therefore young offenders charged with either
summary or indictable offences will generally have their cases dealt with
There are two bills currently before Parliament which, if enacted, will
introduce another exception to young offenders being
generally dealt with by
the Youth Court. If enacted, clauses 17 and 20 of the Children, Young Persons
and their Families Amendment
Bill (No. 4) 2004 will give a judge in the Youth
Court power to commit a young person to the District or High Court where he
that the offence arose out of the same event or series of events as an
indictable offence or offence for which the young person
trial by jury. The Young Offenders (Serious Crimes) Bill,67 if
enacted, will expand the scope of offences for which a young person over twelve
can be charged with in
63 See CYPF Act, above n 7, s 2.
64 See Brookers Child Law, above n58.
67 Young Offenders (Serious Crimes) Bill, March 2006, introduced
by Ron Mark.
the adult courts. The most likely effect of both bills will be that more
juveniles will end up in the adult courts. At the same
time however, there is
international pressure from the United Nations Committee on the Rights of the
Child68 to raise the age of criminal responsibility to be better in
alignment with our responsibilities under the convention.69 It does
seem somewhat inconsistent that a child aged ten can be charged with murder, and
be treated with the same level of responsibility
as an adult in court, yet is
not considered old, or responsible enough to stay home alone or baby-sit another
under current New Zealand
E. Children, Young Persons and Media Reporting
For those cases that are heard in the Youth Court, offenders are
granted automatic name suppression; this is absolute.
Media are allowed to
attend the Youth Court, but this is only with permission of the judge and
proceedings are mostly conducted in
private. Under section 438(1) CYPF
Act70 no report on any proceedings in the Youth Court can be
published without leave of the court that heard the proceedings.
leave is granted to any report, name suppression shall still apply and
nothing may be published that names the young person,
their parent or guardian,
the school they were attending or anything else that may lead to the
identification of the young person
These restrictions do not apply when a young person is tried in, or
transferred to the District or High court for sentencing.72 In the
‘adult courts’ name suppression is at the discretion of the
judge. This was confirmed by Chambers J when
he held that the protection
accorded by section 43873 which restricts publication of a
young persons name, applies only to reports under that Act.74
Justice Fisher, in the well known New Zealand case of R v
Rawiri (Choy Trial) confirmed that
68 New Zealand’s First Report: CRC/C/15 Add 71, 24 January 1997 at para 10 and 23, New Zealand’s Second Report: CRC/C/15 Add 216 at para 4, 5 and 9.
69 United Nations Convention on the Rights of the Child, 1990, ratified by New Zealand on 14 March 1993.
70 See CYPF Act, above n 7, s 438(1).
72 Police v Young Person (1991) 8 FRNZ 609.
73 See CYPF Act, above n 7, s 438.
74 R v Fenton, 1/2/00, Chambers J, HC, Auckland
section 43875 ceased to apply once the accused were committed to the
High Court for trial.76
For those children who are committed to the District or High Court for
trial or sentencing, name suppression may still be granted
140 of the Criminal Justice Act.77 Section 140 states that the
court may prohibit publication of names “or any particulars likely to
lead to any such persons
identification.” It gives no indication of when a
judge should order name suppression, which means all considerations relevant
an application by an adult for name suppression will be just as relevant for
youth, as well as the important qualification
of the offender’s
age. Munday78 argues that this has left the court with a broad
discretion and considerable leeway in making its decisions. There are a number
criteria which have commonly been considered relevant in applications for
name suppression. These were referred to in Lewis v Wilson.79
One of the criteria, where publication may “militate against his or
her established prospects of rehabilitation,” is
especially relevant in
relation to children.80 This is consistent with the objective of the
Youth Court and the CYPF Act81 which take a restorative
rather than a punitive approach to juvenile delinquents.
F. Naming, Shaming and the Restorative Justice
Basis of our Youth Justice system
Though not premised on restorative justice ideas, our system of youth justice
in New Zealand is broadly compatible with them.82 The Youth Court
website advises that our youth system in New Zealand is the “first
legislated example of a move
towards a restorative
75 See CYPF Act, above n 7, s 438.
76 See Rawiri, above n 5.
77 Criminal Justice Act 1989, (NZ), s140.
78 R. Munday “Name Suppression: an adjunct to the Presumption of Innocence and to mitigation of Sentence – 1” (1991) Criminal Law Review 753.
79 See Lewis v Wilson, above n 23.
80 See Brookers Child Law, above n 58.
81 See CYPF Act, above n 7.
82 Achieving Effective Outcomes in Youth Justice, Final Report
February 2004, Ministry of Social Development, Wellington, New
approach” to offending.83 This means that it focuses
on “repairing harm, reintegrating offenders, and restoring balance within
It is proposed that one reason for not granting name suppression is
accountability on the part of the accused, and the implication
of public shame
for what they have done.84 The idea of re-integrative shaming
provides much of the theoretical basis for restorative justice.85
Yet as Winfree Jnr86 contends, there are two different
kinds of shaming. Shaming is disintegrative (or stigmatising) if it blames
and denies them re-entry into the community. Re-integrative
shaming, on the other hand, first establishes the wrongfulness of
the act or
deed (as opposed to the person’s evilness) and then provides a public
means of bringing them back into the community
or group. In summary re-
integrative shaming may help rehabilitation whilst disintegrative
shaming may do the opposite.
If the goals and principles of our youth justice system are to focus on
“repairing harm and reintegrating offenders,”
prevent re- offending, then one would assume that we would be trying to
practice re-integrative shaming. To some
extent this is correct. In the
Youth Court offenders may be referred to a family group conference, where those
affected by the
crime have a chance to contribute, as well as the offender and
only those directly involved with the crime know the offender’s
However, this is not the case for those that are tried in the adult courts, who
do not receive automatic name suppression.
If name suppression is not granted,
their names are put into the public arena where naming and shaming takes on a
new life, and
has a far different effect.
As an extreme example take the Bulger case.87 Dame Elizabeth Butler
Sloss in considering the threat to the boy’s lives under
83 Ministry of Justice, About Youth Justice – Overview of Principles and Process,
<http://www.justice.govt.nz/youth/aboutyj.html> at 10 August 2006.
84 T. Winfree Jnr “New Zealand Police and Restorative Justice Policy” (2004) 50 Crime and Delinquency 189.
87 See Secretary of the State for the Home Department,
above n 57.
looked into the kind of newspaper items concerning the case. She noted the Sunday Mirror, 31 October 1999 which ran an article titled “Society must be protected from this pair of monsters” and another on
27 August 2000 was titled “Throw away the Key.” The Guardian, 31
October 2000 titled “Bulger Father Vows to Hunt Killers down” and
many more of this kind, including hate mail to the
boys’ secure units and
threatening phone calls.89 In New Zealand after the Michael Choi
killing, the Sunday Star Times90 ran an article titled
“teenagers doomed for life of crime”, and The Southland
Times; “Young Killer is
no Star.”91 This seems much
more like stigmatization, focused on the offender’s personality.
Braithwaite92 argues that when people shame us in this
kind of stigmatizing and degrading way it poses a threat to our identities. One
way that people deal with this is to “reject our rejecters.” He
makes a connection between this type of shaming and criminal
Stigmatization increases the attractiveness of these criminal subcultures as
disrespect begets disrespect, because ‘you
don’t respect me, I
won’t respect you.’ As these people have no hope of gaining
a respected identity
under the community’s values, they turn
to delinquent subcultures which look more promising as a basis of respect.
Winfree Jnr93 proposes that these groups of stigmatized
mutually reinforcing criminal subcultures provide the perfect learning
for crime and other illegitimate activities, and may therefore
create continued and perhaps increased crime. I would argue
would be more powerful in young people who by nature care much more than
adults about what others think of them, and
are in a phase of their lives in
which they are already seeking for both their identities and acceptance. Cast
out by the community,
this lowers their chances of re-entry and rehabilitation
88 European Convention on Human Rights, 1950, Article 2.
89 Venables v News Group Newspapers Ltd and Others, Thompson v Newsgroup Newspapers Ltd and Others  2 WLR 1038 page 457.
90 E. Wellwood “Teenagers Doomed for Life” The Sunday Star Times (Auckland, New
Zealand, 25 August 2002), edition A, page 1.
91 See “Young Killer No Star”, above n 8.
92 J. Braithwaite “Shame and Criminal Justice (Changing Punishment at the Turn of the
Century)” (2000) 42 Canadian Journal of Criminology 281.
93 See Winfree Jnr, above n 84.
Granting name suppression would turn the focus of such newspaper articles
and public debate onto the nature of the crime, the act
and “not the
person’s evilness.”94 Only those people directly
involved would know the perpetrator’s identity. Braithwaite justifies
this approach by theorising
that when we do something wrong, the people who
are in the best position to communicate the shamefulness of what we have done
are those we love. Our family and friends are those we respect and have the most
influence over us, and because these relationships
are based on love and
respect, when they shame us they will do so re- integratively.
Lord Judd, commenting on the naming and shaming of young
offenders under the United Kingdom’s Anti-Social Behaviour
questions what is important; venting our frustration by naming and
shaming the young person or working on the tougher
job of helping the child
become a responsible member of the community and “do something that
will overcome a repetition
of the problem in the future.”95
Lord Judd also discusses a “badge of honour” among some young
people, in that they may feel it fascinating or desirable
to have their name in
a newspaper. He questions whether this would really help with rehabilitation and
enabling the child to understand
the damage and harm their conduct has done to
others. This notoriety may in fact feed into the young person’s sense of
about causing trouble. We can see evidence of this in Bailey
Kurariki, after the media frenzy that followed his case, as discussed
There was also evidence of this “badge of honour” attitude in Ngatia
Rewiti, the fourteen year old boy who threw
a concrete slab from an over-bridge,
killing passing driver Christopher Currie.96 In a New Zealand
Herald article titled “The Streets of No Shame” the paper
describes how the mechanism
of justice seemed like a ‘badge of
honour’ for the boys, that Rewiti had become a star. “He's achieved
of fame TKS (south Auckland young person’s gang) adores - a
Tupac Shakur-style exit from court,
94 See Braithwaite, above n 92.
95 Lord Judd, Lord Hansard Home page 2006, <http://www.shaka.mistral.co.uk/lord hansard.htm> at 1 August 2006.
96 TV3 v R and Ngatai Tamahou Rewiti HC-Auckland,
2006, CRI-2005-092-14652, Winkelman J.
captured by the cameras for the evening news.”97 The reference to a “Tupac Shakur-style exit” is to that of a celebrity, with cameras flashing in all directions. It was also reported that Rewiti was proud of what he had done, boasting to other children at school before he was apprehended, “he was the kid all those people were talking about.”98
This bad publicity is getting such children the attention that they may lack
at home, attention that they revel in and want more of.
Equally for those who want to make a fresh start, for whom being
caught and reprimanded has had an effect, the impact
publicity about them can only prolong their problems in engaging with their
community more positively. People, who
may never have known them or met them,
will know them only as a troublemaker, long after their behavior has changed.
work that social workers and psychologists would have carried
out with the offender during their time in custody would be put to
waste, as the
community only knows them by name as a criminal. So then what about Bailey
Kurariki who will come out of prison still
a teenager, after spending seven
years in jail (provided he does not get paroled earlier), does he have any
realistic chance of
reintegration and a normal adult life?
G. The English Experience
The ‘James Bulger’99 case as it is known, is the
most notorious child murder case in the United Kingdom. Two English schoolboys,
Jon Venables and
Robert Thompson were tried and convicted in
November 1993 for the murder of two-year old James Bulger. They had
dragged their victim from a supermarket for four kilometres, then stoned him to
death and left his body on the railway track so as
to try to conceal their
crime. The boys were at the time of the trial eleven years old and ten at
the time of the murder,
only just able to be convicted of a crime
at all. There was so much intense pre-trial publicity that the trial was
moved from Liverpool, where the killings had occurred, to Preston Crown Court.
Both boys received name suppression during trial,
however this was lifted
following conviction. The attitude of the public and media was menacing. Two
97 “Streets of No Shame” The New Zealand Herald (Auckland, New Zealand, July 9 2006).
99 See Secretary of the State for the Home Department,
above n 57.
which I will examine resulted from the original trial. The first was the
appeal the European Court of Human Rights100 and the second was the
application by both boys for permanent identity suppression following their
release (with new identities)
from the secure units and their attaining
the age of majority.101
H. Name Suppression Before and During Trial
Venables and Thompson appealed to the European Court of Human Rights. One
of the bases of their appeal was a violation of Article
6(1) of the 1950
European Convention for the Protection of Human Rights and Fundamental Freedoms,
which states that everyone has
a “Right to a Fair Trial.” The court
found that a child is denied this right when he or she cannot effectively
in his or her trial.102 It stated that a public trial in
an adult court must be regarded ‘in the case of an eleven year old child
as a severely intimidating
procedure. Taking into account the applicants’
age it found that “the application of the full rigours of an adult,
public trial deprived him of the opportunity to participate effectively
in the determination of the criminal charges against
I agree with Sentlinger who contends that the decision tends to suggest that
children should be tried in private, less formal proceedings
in order to allow
the offenders to participate in the process and reduce intimidation
by the public.104 Dyer goes farther and argues that the
decision suggests that children who are Venables’ and Thompson’s age
never be tried in adult criminal proceedings again. Indeed,
although the judgment avoids the issue, the court said that
“it is highly
unlikely that the applicant would have felt uninhibited, in the tense courtroom
and under public scrutiny.”105 This may be read to conclude
that a private trial may be required to ensure an element of fairness to the
100 V v United Kingdom  ECHR 171; (2000) 30 E.H.R.R. 121.
101 See Venables v News Group Newspapers Ltd above n 89.
102 See V v United Kingdom, above n 97.
104 E. D. Sentlinger, “V v United Kingdom: Is it a “New Deal” for Prosecuting Children as
Adults” (2000) 16 Conn. J. Int’l L. 177.
105 See V v United Kingdom, above n 100, at para
In both the United Kingdom and New Zealand, courts are encouraged to take the best interests of the child into consideration at all stages of the proceedings. Buckley argues that without doubt the interests of the child should always come before satisfying public opinion.106
Sentlinger107 contends that closing the doors to a juvenile
criminal trial increases the ability of the child to participate in the
By excluding the public, courts can create an atmosphere that
benefits the interests of the child while also serving the interests
justice. Given the public scrutiny and its potential effects on the child's
ability to participate, the question of a public
or private trial is
central to determining whether a child can effectively participate at
trial. In addition the child's
ability to handle the rigors of a public trial
should be considered in determining whether to remove a child to an adult
court. It has been said that during trial Venables
and Thompson heard tapes of their emotionally charged police
Venables cried most of the time until he found a way to distract himself from
listening to the proceedings, by counting
in his head or drawing circles on the
floor with his feet.108 Bailey Kurariki was given pen and paper to
draw on during proceedings. They could not pay attention to something they
understand. Although the decision of the European Court is not
binding on New Zealand, it is persuasive. If Bailey Kurariki
had been tried
in a private, age appropriate setting, he may have been able to better
understand and appreciate the seriousness
of what he had done, instead of being
sidetracked, reveling in media attention. In the same way Ngatai Rewiti
have received his “Tupac Shakur-style exits” from
the court room, and both boys would not be celebrities in the eyes
peers, not to mention themselves.
Wolff, Alexander and McCall Smith contend that for children under
fourteen there should neither be a public trial, or
revelation of their
names, to avoid the damage done by publicity and labeling. Justice109
also recommends that children under fourteen should not be liable to a
public trial in adult criminal courts and that for homicides
106 F. Buckley “One Murder, Three Victims, James Bulger, Robert Thompson and Jon
Venables”  C.O.L.R. (10).
107 See Sentlinger, above n 104.
108 See Wolff, Alexander & McCall Smith, above n56.
109 Justice (1996) “Children and homicide: Appropriate
Procedures for Juveniles in murder and homicide cases”. London:
by children between fourteen and eighteen there should be a public
hearing in a crown court with the judge able to rule about
reporting and revelation of identity. Children must be able to understand the
trial procedure as it may well constitute
the beginning of treatment.
International legislation supports a closed trial. The International
Covenant on Civil
and Political Rights110 provides “in the
case of juvenile persons, the procedures shall be such, as will take
account of their age
and the desirability of promoting their
rehabilitation. The Beijing Rules111 which preceded New
Zealand’s own Child, Young Persons and their Families Act,
8. Protection of Privacy
8.1 The Juvenile’s privacy shall be respected at all stages in order
to avoid harm being caused to her or him by undue publicity
or by the process of
8.2 In principle, no information that may lead to the identification of a
juvenile offender shall be published.
Fisher J refers to the enactment of section 329112 and
438113 of the CYPF Act as being entirely consistent with the Beijing
rules. The CYPF Act however is limited to the Youth Court, while
Beijing Rules extend to all courts. The Beijing Rules were followed by the
United Nations Convention on the Rights of
The European judgment and international legislation clearly weigh in
favour of at least name suppression before and during
perhaps even further to the extent of a closed court. Our own
experience in New Zealand illustrates that
this may have resulted in a far
better outcome in the cases of Bailey Kurariki and Ngatai Rewiti. I think it is
integral that all
children receive their fundamental right
110 See ICCPR, above n 13.
111 United Nations Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”). Although these rules are not binding on New Zealand the significance is that they directly preceded our own CYPF Act (Fisher J in R v Rawiri). See Appendix.
112 See CYPF Act, above n 7, s 329
113 Ibid, s 438.
114 See Convention on the Rights of the Child, above n 69, Article
participate in their own trial, and that media interest and presence is
likely to frustrate such a right.
I. Post-Trial Permanent Suppression
On attaining majority and pending the release of the two from their
secure units with new identities, Venables and Thompson
indefinite prohibition of anything which would identify them.115
Dame Elizabeth Butler Sloss found that there was a real threat to their
lives and possibility of revenge attacks. She noted that
the media were in a
unique position to provide the information that could lead to this risk and
found that therefore the law of
confidence could be extended to cover the
indefinite injunctions sought in this case. She found the right to life was
right and therefore a reasonable limit on freedom of
She did however note that she was uncertain whether it would have been
appropriate to grant such injunctions if only Article
were likely to be breached. She said:
Serious though the breach of the claimants’ right to respect
for family life and privacy would be, once
the journalists and
photographers discovered either of them, and despite the likely
serious adverse effect on efforts
to rehabilitate them into society, it might
not be sufficient to meet the importance of the preservation of the freedom of
in Article 10(1).118
She expressly stated it was not necessary for her to conclude on this
issue due to the real risk of a breach of the rights of
the claimants under
Articles 2 and 3.119 She placed emphasis on the intense media
interest which remained seven years later and the continued hostility toward the
The judgment is indicative that only in the case of a threat to the
offender’s life on release would permanent identity suppression
115 See Venables v News Group Newspapers, above n 89.
117 See ECHR, above n 88, Article 8 ‘Respect for private and family life’.
118 See Venables v News Group Newspapers Ltd, above n89, at para 464.
119 See ECHR, above n 88, Article 2 “Right to
life” and Article 3 “right to not be subjected to
granted. I do however think that the adverse effect media attention
would have on their rehabilitation and reintegration
justifies a limit on
freedom of speech.
Any restriction placed upon the media and reporting in the Youth
Court and any grant of name suppression limits freedom
of expression under the
New Zealand Bill of Rights.120 The question then, is whether these
limits can be demonstrably justified in a free and democratic society.121
In the Canadian case of Southam Inc.,122 the court
said that these limits could, so as to promote the rehabilitation of
young offenders. As a means to achieve
this objective the state chose
to protect young offenders from the harmful effects of publicity. Martin123
questions this objective. He asks whether society in fact has an equal
interest in promoting the rehabilitation of adults. “If
rehabilitation of young offenders is prejudiced by the harmful effects of
publicity, why should it not create a similar protection
for adult offenders?
Are adult offenders not going to be affected by publicity?” Martin124
argues that the reasons of the court for protecting young offenders must
stand or fall on a comparison of the recidivism rates for
young offenders and
the recidivism rates for adult offenders. He argues that if it turned out that
the recidivism rates of young
offenders were significantly lower than
adult offenders, then we could conclude the limits were justified in a free and
I think that the fact alone that young offenders are still in
their formative years surely means that there is a
much higher chance
of rehabilitation than in adults. Young children are very impressionable
and those that offend have often
been led down the wrong track and just need
someone to care enough to lead them in the right direction again. The CYPF Act
this in having rehabilitation as one of
120 New Zealand Bill of Rights Act 1990, s 14 ‘Freedom of Expression.’
121 Ibid, s 5 ‘Justified Limitations.’
122 Southam Inc. v. R. (1984), 48 O.R. (2d) 678 (H.C.J.) – In this case the applicant sought a declaration that the Young Offenders Act limited or denied their fundamental freedom of expression under the Canadian Charter and sought to get a court order excluding the public and press from the court to be set aside. The court agreed that their rights were limited but thought it was a reasonable limitation which could be demonstrably justified in a free and democratic society.
123 R. Martin Media Law (2nd ed) Irwin Law, Toronto, 2003.
it objectives.125 It seems absurd that after having spent many
years and resources helping Venables and Thompson develop into mature
adults, the court would allow it all to be reversed. On all
accounts it is reported the boys are genuinely very remorseful for
have done and have grown into likeable young adults with little chance of
re-offending. The boys would forever be caught
in their past and not allowed to
move on with their lives. They have served their punishment; the media should
not be able to
inflict a further and possibly indefinite one. Wolff, Alexander
and McCall Smith argue that with proper care and treatment child
can become very different adults from the children they once
were.126 The European Court of Human Justice127
recommended that the penal system of countries should in the case of
children have objectives of social integration and
education and that
strictly punitive approaches are inappropriate. I think that the court, in
considering name suppression must
take into account the punitive approach the
media take to create controversy and public interest to sell papers.
The victims of the crime often want the offender’s name published to
serve as additional retribution. Revenge is sweet, but
it is a very basic human
instinct and as members of a civilized society we must ask ourselves
whether in the long
run it is in our best interests. If our approach
promotes re-offending the cost to the public will be far greater
one which helps produce citizens who are able to contribute
effectively to society. I think that given
that they are children and
have many more years to live, society would prefer they rehabilitate, rather
than cause much more potential
harm by following a life of crime. So, given the
evidence, why are the public continuing to demand harsher treatment of juvenile
offenders? Could the media be to blame for this as well?
J. The Media and Public Perception of Juvenile Offenders
Davis128 argues that for the media to fulfil their so called role of
‘informer’ and ‘educator’ of the public as surrogates
in court, the press
125 See CYPF Act, above n 7, at s 4.
126 See Wolff, Alexander & McCall Smith, above n56.
127 See V v United Kingdom, above n100.
128 See Davis, above n32.
should be able to and should make every effort to report on everything that
happens in court. This would be so to ensure no bias so
the public are allowed
and able to form their own opinions on cases and on our justice system in
general. In reality however,
news media will only allocate resources to
cases that are deemed newsworthy, which results in only a select few cases
reported in the press. Serious juvenile offender cases are usually
deemed ‘newsworthy’ as they are sure to
invoke strong public
reaction and sell papers.
Public attitudes and opinion unavoidably depend on public knowledge. However,
few people know much about the juvenile justice system
or how it works. Their
knowledge tends to be filtered through the mass media and often involves
cases such as the Bulger and Choy cases
discussed above. Roberts129 contends that news media coverage of
youth crime conveys a distorted portrait of the cases being processed by the
courts and that
youth crime in the papers is heavily skewed towards
violence. He refers to studies by Dorfman and Schiraldi who
Rather than informing citizens about their world, the news is
reinforcing stereotypes that inhibit society's
ability to respond
effectively to the problem of crime, particularly juvenile crime.
Roberts131 goes on to add that coverage of youth crime in the
media may affect public reaction to youth justice by promoting an offence-
view of processing and sentencing. If people do this they are less likely
to take account of the offender’s age and more likely
to oppose mitigated
punishments for young offenders and criticize the Youth Court for doing
so. This is significant, as the
existence of our separate youth justice based
system is founded upon the recognition that the offender’s age affects
his degree of culpability. I think this is evident in that many people claim
to support lifting name suppression on the
basis of the seriousness of the
offence, although as I mentioned before, the seriousness of the offence does not
make them any less
a child or any more of an adult.
129 J. V. Roberts “Public Opinion and Youth Justice” (2004) C & J 11.
130 Dorfman, L., and V. Schiraldi (2001) "Off Balance: Youth, Race and Crime in the
News." Building Blocks for Youth, 20.
The abduction and murder of James Bulger became a global media event. Alison Young contends that it also became a kind of global benchmark against which to measure the extent of juvenile crime as a problem or the depths of national depravity.132 Young describes how the media portrayed Bulger as “the quintessential child: small, affectionate, trusting, vulnerable, high spirited. He was frequently referred to as ‘baby James.’”133 She also discusses how James’ photo accompanies most articles, wearing a t-shirt or pyjama top adorned with the words “Teenage Mutant Hero Turtles.” He is taken as representing many of the symbolic ideals of childhood and most importantly, he appears to be what he is, innocent. Newspaper headlines included ones such as “Death of the Innocence”. In stark contrast Thompson and Venables are portrayed as “appearing to be children, but they are not, they are more like miniature evil adults or monsters in disguise.”134
Young argues that James Bulger’s status as a child was elevated, while
Venables and Thompson were subjected to strategies
by the media which
undercut their childlike appearances, treating them more like adults.
Franklin and Horwath135 describe how the newspapers seemed
unwilling to pay any serious attention to the mitigating circumstances which
may help to explain
the behaviour of Thompson and Venables, “without
recourse to accounts based on biblical notions of ‘inherent
evil.’”136 They argue the most worrying effect of
this type of media abuse is the cultivation of the image of a child
powerful, destructive being.137
I think that this message that children are bad or evil can have
a spiraling effect. The public see these people who,
children, as adults with adult minds capable of realizing the effects of their
crime and therefore demand they
receive adult treatment and punishment. It adds
to the perception that children are becoming more
132 A. Young “In the Frame: Crime and the Limits of Representation” (1996) 29 ANZJ Crim 81.
134 Ibid, p 84.
135 B. Franklin & J. Horwath “The Media Abuse of Children” (1996) 5 Child Abuse
136 Ibid, p 313.
137 Ibid, p 316.
violent and out of control, which in turn intensifies the punitive nature of
society today, and leads to demands for harsher treatment.
The idea that a
child such as Robert Thompson or Jon Venables fully understands
the effect of what he did at
such a young age is plainly wrong. Children do not
have the life experience to understand the long term effects of what they do.
These are children who only learnt to read and write not so long ago and who are
not even a quarter of the way through their lives.
Roberts138 argues that the public are encouraged by the media to
draw general inferences about young people on the basis of a few specific
instances. This public misconception of juvenile justice influences
public attitudes towards juvenile justice policies.
New Zealand is
becoming more and more of a punitive society with promises of harsher
treatment of juvenile offenders
being given frequently in election
campaigns and two bills before parliament which if passed will mean more
of young offenders.139 The portrayal of
children as calculating, wicked and conniving gives the public and the
government reasons to justify their
harsher treatment and leads them to
become desensitized to the offenders’ needs. Hill140 refers
to the analogy of dropping a stone into a pond to explain the ripple effect of
the social amplification and dissemination
of information by the media.
This negative media imagery creates the wrong impression of children,
which leads to a public
response that is wrongly based, and punishments that
are not in the best interests of the child or the community.
Bailey Kurariki will have served his sentence by 2009.141
Although his appearance would have changed with age, there are not many
people in New Zealand who will not remember or recognize
his name. If
138 See Roberts, above n129, p 11.
139 Child, Young Persons and their Families Amendment (No 4) Bill and Young
Offenders (Serious Crimes) Bill 2005.
140 A. Hill “Media Risks: The Social Amplification of Risk and the Media Violence
Debate” (2001) 4 Journal of Risk Research 209, at 215.
141 Sensible Sentencing Trust Junior Bailey
at 1 August 2006.
further cases involving murder or manslaughter committed by a child occur,
the media are likely to drag his name through the papers
and on television all
over again. He will probably have trouble finding meaningful
employment if he ever tries.
Robert Thompson and Jon Venables on the
other hand will not have such trouble. They are free to enjoy the rest of their
in peace. Having completed their sentence, and punishment for their
crime, they are able to move on with their lives and look into
the future, have
goals, ambitions, and dreams. They have a chance of becoming good,
contributing members of society. Bailey
Kurariki and Ngatai Rewiti will have
no such opportunity.
Had Bailey Kurarirki and Ngatai Rewiti been granted name suppression they would at least have the opportunity to start afresh on release. The public could still have been informed that a child had killed and the media would have been able to report on the sequence of events. The
‘public interest’ and principle of open justice would not have
been hampered in any significant way. Instead, stigmatized,
Rewiti are likely to become more involved in criminal subcultures, with gangs of
other youths who perhaps saw them
on television, or their picture in the
paper and look on them as celebrities, icons perhaps. If Kurariki and Rewiti
path, chances are high they will end up back in prison as adults,
and the cost to society will be far greater than if it had worked
their rehabilitation and reintegration. If they were to ever get in trouble
with the law again, the media attention
would intensify and the cycle
would repeat itself.
We have a Youth Court that is strong on reintegrating the offender into
society and yet when a child commits a serious offence this
aim seems to be
thrown out the window. This contradiction should not be present. As
recognized by the Youth Court,
name suppression in particular plays a
large role in the prospects of reintegration and rehabilitation. It should
be applied to all child offenders, because they are
children, not conditional on what crime they committed.
Thompson and Venables were not granted permanent name or identity
suppression initially, I believe that this would
be more expedient,
efficient and far less costly for our justice system, than going through
the process of creating and
maintaining new identities on release. It also
promotes consistency with the overall treatment of youth offenders as
by the CYPF Act and the Youth Court. To pour huge resources into
creating a new life for these
offenders, I feel, creates public resentment, as the victims have to live the
rest of their lives with their loss. This resentment
For these purposes a child is someone who, but for the seriousness of their crime, would have had their case heard by the Youth Court. The seriousness of their crime should not mean that they are treated as an adult. They should be treated as a child with permanent name and identity suppression until they are no longer considered a ‘child’ or
‘young person’ as defined by the CYPF Act. In New Zealand this
would be until they are eighteen. On reaching age eighteen I propose that the
offender may apply to the court for further suppression,
and if the court thinks
that this is necessary for their rehabilitation and reintegration into society,
or as in Thompson and Venables’
case, their safety, it may be
The word child has connotations of innocence, playfulness and vulnerability. However when a child commits a serious crime, for most people, those connotations disappear and instead are replaced by a belief this child has displayed an adult behaviour and must therefore be mature. I believe this to be wrong. A child’s brain is not yet fully developed, and neither are their thought processes. With a child, previous history is hopefully minimal and definitely short, while the potential for change is huge. Let us not ignore this potential. Surely a child should get a second chance. Name suppression will go a long way towards this.