Gag orders are for the benefit of victims and witnesses only
It is cardinal that an accused person is innocent until proven guilty. Yet, media reports on crimes regularly name the person accused of the crime, thereby exposing the person to shame even before conviction. There is no lack of examples where accused persons, who were subsequently proven innocent, nonetheless had their good names dragged through the mud by media coverage in the run-up to being vindicated by acquittal.
In fact, whenever a person is accused of a criminal offence, the principle of Open Justice upholds the public’s right to know why and how. Open Justice requires the trial of a person accused of a crime to be conducted in the public eye. There is an open invitation to the public to scrutinise the process by which the judge decides the guilt or innocence of the accused person.
In other words,
Open Justice means: "Not only must Justice be done; it must also be seen
to be done."
Transparency of the
legal process promotes public confidence in the outcome of the trial. With confidence in the administration of
justice, aggrieved parties have no reason to take the law into their own
hands. Open Justice promotes trust that
the legal system will right the wrongs - that culprits will be brought their
just deserts and that justice will be served.
Open Justice is
so fundamental that unless the accused person is a minor at the time of the
offence, or when gag orders are made, media is free to name accused persons.
For accused
persons below 18 years at the time of the offence, statutory provisions ban the
publication of their names as well as information that may lead to their
identification. It is an automatic
ban. There is no need to apply to court
for gag orders to seal the identifying particulars of such young accused
persons.
Gag orders preventing
the public from knowing certain pertinent facts of an alleged crime, in fact
contradicts the imperatives of Open Justice.
The contradiction is permitted for one reason only - that it is in the
interest and for the benefit of victims and witnesses to do so.
Gag orders on the
identity of victims and witnesses serve the important function of protecting
and shielding them from the distress of public exposure, thereby enabling them
to give their testimony to the Court candidly and without embarrassment or
reprisal. For victims of sexual offences, gag orders
also minimise further trauma to such victims and prevent re‑victimisation.
Gag orders anonymising
the names of victims and witnesses of sexual offences are the norm. Less common are gag orders on the identity of
the person accused of the sexual offence. Sometimes, media reports state the
reason the accused persons cannot be named is due to gag orders protecting the
victims’ identity.
But sometimes, the media reports do not give the reason for the Court’s decision to hide the identity of the accused person. The absence of explanation for withholding the accused person’s identity, may give rise to cynicism. It may appear as if such accused persons have been given the “benefit” of anonymity and spared from the glare of the public eye.
Were those
gag orders made to shield the accused person from shame? To protect the reputation
of the organisation the accused person belongs to? The answer is No.
The law is clear:
the sole purpose of gag orders is for the benefit of victims and witnesses,
never for the accused person nor any other persons or interests.
No less than our Chief
Justice Sundaresh Menon has categorically stated: gag orders "are imposed
solely for the protection of victims or witnesses and never for the benefit of
accused persons. This means that the
only basis for extending the scope of a gag order to include an accused
person's identity is that the disclosure of his identity would likely lead to
the identification of the victims or witnesses". (Ref: Chua Yi Jin Colin v
PP [2021] SGHC 290)
This means that
the only reason to seal the identity of the accused person and any other
particulars of the case, is because the Court takes the view that exposing
those particulars would expose the identity of the victims and witnesses.
Crimes and the
carriage of justice are everybody’s business. Whenever a person is accused of a
crime, the public has the right to know all the relevant details about the case. Information facilitates the public’s effort
to understand the context of the alleged crime, why and how it happened. With
proper understanding, the public is enabled to follow the course of justice and
to appreciate the eventual outcome of the trial.
But if the Court
decides that the exposure of certain information is detrimental to the victims
and witnesses, then the public’s right to know will be deferred for the sake of
the victims and witnesses.
By Jeannette Chong-Aruldoss, a lawyer practising in Singapore for more than 30 years.
23 February 2022
