EXPLAINER: When James Leslie Booth pleaded guilty to sexually abusing four boys, plenty of facts about the case could be made public.
His crimes, all committed between 1981 and 2000 at an Ohakune campground, featured various kinds of sexual offences.
While it could be reported he was a teacher, a suppression order prevented publication of the name of a school he taught at.
Despite that, many people have contacted Stuff identifying the school, including former students who say Booth also abused them.
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Others have breached the order by posting the name of the school on social media when sharing articles about Booth. Those people could face six months’ prison if charged with breaching name suppression, although such prosecutions are rare.
The decision to grant the school name suppression, which was made in September 2021 but not been published until now, provides some context.
But to understand the decision, we need some background.
How does name suppression work?
Name suppression used to be very easy to get, with the now-replaced Criminal Justice Act merely saying a judge “may” impose suppression.
But the Criminal Procedure Act, which became law in 2011, tightened up judges’ discretion, putting in place clear guidelines for suppression.
The changes appear to have worked, with Ministry of Justice figures showing permanent name suppression orders made in Manawatū courts fell 90% between 2010 and 2014.
Protecting a defendant’s fair trial rights is a common reason for name suppression.
The case of Jesse Kempson, who murdered British backpacker Grace Millane in Auckland in December 2018, is a good example.
He was granted name suppression because he also faced trials for raping a woman in an Epsom motel in April 2018 and serious violent and sexual offending against a former girlfriend in January 2017.
Identifying him in relation to one case could have prejudiced his other trials.
His name suppression continued until the Supreme Court rejected an appeal in December 2020.
Protection from extreme harm is another common reason for permanent name suppression.
That harm needs to be likely and proven, such as severe mental health difficulties or suicidal tendencies backed up by evidence from psychologists.
But the school is not a defendant, so how can it get name suppression?
Some people who are not defendants automatically get name suppression, such as sexual violence victims and witnesses younger than 18.
Judges also have the power to suppress the identity of any witness, victim or person connected to a case.
That was how Joseph Parker could fight for 23-months to have his name suppressed, after he was alleged to have connections to a methamphetamine syndicate that smuggled 20 kilograms of drugs into New Zealand.
He was never charged – he also denied while on oath any involvement with the ring – so was considered a person connected to the case.
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Are the rules the same for a defendant and a connected person? Also, a school is not a person, so how can its name be suppressed?
The second of those questions is easy to answer – entities, like companies and schools, are legally treated as a person, so they can get name suppression.
The rules are different, with connected people having to only prove undue hardship is likely.
Undue hardship is defined as hardship greater than the circumstances warrant, or hardship that is disproportionate to what justifies publication.
That is a bit of a word scramble, but Judge Jonathan Krebs – who granted the school name suppression in September 2021 – helpfully broke it down in his judgment.
Firstly, the school had to show undue hardship was likely.
The school’s current principal said naming the school would cause the following hardships:
- people not feeling safe enrolling their children
- harm to the school’s reputation, which had gone from very negative to positive over the years
- the school’s due diligence being unreasonably speculated about despite no offending taking place on school grounds
- distress to existing staff due to unreasonable speculation.
- all the above being made unreasonably worse as the offending was historic
Stuff opposed the school’s application, arguing the historic nature of the offending reduced any harm the school would suffer.
Furthermore, identifying the school could get other complainants to come forward as they may not solely remember Booth’s name – something the judge accepted was an argument with “some force”.
Krebs, however, sided with the school, describing its case as “compelling”.
Booth’s name was sufficient information to alert others who may have been abused by him, while the historic nature of the offending and the fact it did not take place at school weighed in favour of suppression.
“This might have been different had the offending occurred on school premises or at school camp,” Krebs said.
Why suppress the school but not the fact Booth was a teacher?
Judges in Krebs’ position often suppress details as well as names to put as much distance between inquisitive people and the identity of a suppressed person or institution.
But he did not do so in Booth’s case, saying he acknowledged people may figure out the school’s connection to Booth.
“That cannot be avoided.
“By suppressing publication of the school’s name, I am able to keep any reputational damage to a minimum and avoid encouraging speculation as to the identity of [the victims].”
What does this decision mean? Can businesses and people with any kind of connection to a crime get their names suppressed?
As Krebs is a district court judge, his ruling does not carry as much weight as one made in the High Court, Court of Appeal or Supreme Court.
Those higher courts make what are known as “guidelines judgments”, which judges in lower courts should reference when making suppression rulings.
Krebs did exactly that in Booth’s case, referencing the suppression of two schools and a bus company connected to Robert Selwyn Burrett.
Burrett was sentenced in the High Court at Christchurch in 2016 to 19 years and six months’ jail for sexual offending against a dozen schoolgirls, some who were disabled.
He worked as a caretaker for a Christchurch school and drove a taxi-bus that took disabled children to another school at the time, committing many of the offences in the caretaker’s shed.
Justice Gerald Nation said naming the schools could lead to the identification of victims and make pupils attending the school have a stigma attached to them.
That stigma, as well as stress, could spread to pupils’ families and school staff, causing them undue hardship, he said.
Similar reasons were given for suppressing the bus company’s name – potential identification of victims and harm to the company and employees.