Why the Accused Cannot be Named – An Explainer by Jeannette Chong-Aruldoss
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 Honourable Chief Justice Sundaresh Menon has categorically stated that:
“It also follows from the purpose of gag orders that they 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”.
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.
Jeannette Chong-Aruldoss is a lawyer practising in Singapore for more than 30 years.
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