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Explainer: What are gag orders and why do the courts impose them?

Explainer: What are gag orders and why do the courts impose them?

Source: TODAY
Article Date: 18 Nov 2020
Author: Janice Lim

Gag orders are usually imposed to protect the identity of victims or other innocent parties in court proceedings and can also apply to the identity of the offender if that is necessary to protect the identity of the victim.

In a rare step, the High Court on Monday (Nov 17) overturned a gag order imposed in a case involving a father who killed his two-year-old daughter while suffering from depression.

The move came after the prosecution asked for the gag order, wrongly imposed in June this year by a magistrate, to be lifted on the grounds that the victim was dead.

The father, Teo Johnboy John, now 36, killed his daughter Ashley Clare in June last year. He was going through divorce proceedings with his former wife and was suffering from major depressive disorder.

In June this year, a prosecuting officer applied for a gag order on their names in the State Courts, one year after their names had been initially published by the media shortly after the killing took place.

The court heard that there had been no directions from the Attorney-General’s Chambers or the police to apply for a gag order, national daily The Straits Times reported.

TODAY explains what gag orders are, and what considerations the court takes into account when imposing one.

WHAT ARE GAG ORDERS?

The courts usually agree to impose gag orders when there is a need to protect the identity of the victims or witnesses, lawyers said.

These usually involve crimes where sexual violence or children are involved and the gag orders last indefinitely.

Once the court order is imposed, journalists as well as members of the public are not allowed to share information that would identify those named in the order, or photographs of those people.

Lawyer Amolat Singh, partner at law firm Amolat and Partners, said that the purpose is to protect victims from suffering from harassment or ridicule if they could be identified easily.

By extension, in some cases, the identity of the accused may also remain anonymous to prevent anyone from identifying the victim, though the intention of the courts is not to protect the accused.

For example, in a sexual abuse case within a family, naming the offender would make it easy for anyone who knew the family to identify the victim.

However, when an offender molests a random stranger, for example, the identity of the victim may be the subject of the gag order, but the offender could usually be named since that would not lead to the identification of the victim.

Mr Nicholas Narayanan, partner at law firm Nicholas and Tan Partnership, said that there are even legal provisions stipulating the situations when a gag order must be imposed, such as in cases involving the Children and Young Persons Act.

ARE THERE EXCEPTIONS?

Not all cases involving children or sexual assault would necessitate a gag order, lawyers said.

One situation is when the victim has died, such as Ashley Clare in this case even though she was a minor. Hence, there is no longer a need to protect her identity.

Mr Narayanan also raised the incident involving eight-year-old Huang Na who was murdered in 2004, as another example where a gag order would not be appropriate.

“By that time, she was already deceased. It is in the public’s interest to know about the victim and who she was,” he said.

In its request to reverse the gag order on Ashley Clare, the prosecution said that granting the order was “palpably wrong” because there were no factors that justified a detraction from the principle of open justice.

Open justice is one of the key legal principles that requires courts to conduct their proceedings in public.

There was public interest in identifying the offender, and no public interest in suppressing the identity of the victim, prosecutors said.

Mr Adrian Tan, partner at TSMP Law, said that in issuing gag orders in general, the courts have to balance the victim’s welfare against the need for the public to know the facts of the case.

Sometimes, the courts may also decide that a gag order may not be the best option even if children or sexual violence are involved.

While the victim’s welfare is the priority, there may be some cases where it is more important for the public to know the offender’s identity if it may help more victims come forward, Mr Tan added.

CAN GAG ORDERS BE REVERSED?

Lawyers said that it is quite rare for gag orders to be lifted, even though they can be.

Ms Gloria James-Civetta, head lawyer at Gloria James-Civetta and Co, said that she has seen such orders lifted only in cases where the victim has died.

Lawyers also said that a victim, in principle, can apply to have the gag order lifted if he or she wishes to go public about his or her experience.

However, the lawyers who spoke to TODAY said that they have not come across such a request.

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