I wonder what would have happened to Mark Hotchin if he hadn't been quite so respectable, quite so upper class and quite so, well, rich
Phil Taylor at the Herald yesterday revealed Mark Hotchin's half million dollar losses in a 2002 get-rich-quick scam, a fact the courts chose to keep from the public.
In making the suppression order, District Court judge James Weir cited the reputation of the men, the financial and professional consequences and the possible consequences for their company and employees.
Hotchin's affidavit requesting name suppression is breathtaking and the judge's decision to grant it just so galling. For a start, the market system upon which our economy rests is based on theory that encourages "perfect knowledge" or "perfect information"; ie the market only works if people have a full understanding of the financial choices they're making. That a court should actively encourage imperfect information is staggering.
Hotchin's affidavit claimed that if the facts of his involvement in a ponzi scheme became known, Hanover's investment strategies would lose credibility and his reputation would be damaged; investors and third parties could conclude Hanover was a bad bet and withdraw funds; Hotchin's commercial partners would lose faith in him and request his resignation.
The point of this post is to imagine a similar but different scenario in another courtroom, perhaps one next door. In that courtroom a burglar has been himself robbed and has appealed for name suppression. His affidavit argues:
- There would be concern over his abilities as a burglar and he would lose face and credibility within the criminal community.
- The people who go out stealing with him, his fences and the pawn shops he supplies might come to the conclusion that if he can't protect himself from burglary, he might not be much of a burglar himself. This could cause a lack of confidence in his criminal syndicate, resulting in those he does jobs with losing their source of income.
- Even worse, if people knew he was a burglar, they might take steps to protect themselves from him, installing locks and setting their dogs on him.
- In these circumstances he could be shunned by the criminal community. Others in his syndicate might decide he wasn't fit to be a burglar, and so he would be unable to continue in his chosen profession.
You could argue that people had the right to know of this man's activities and questionable skills, to know the practices of the organisation he worked for, to make informed decisions, and that the evidence may well point to the fact he wasn't particularly good at his job. And you might say that's only proper if we're serious about meritocracy and market discipline and protecting the public.
You might even conclude that all the arguments made in favour of suppression are exactly the reasons it should not have been granted.
But what you'd be missing is how unfair that would be to the burglar, the poor wee lamb.
Yeah right. There are reasons for the principle of open justice, and one of them is that you should err on the side of the public good and transparency because you can never know what's round the corner. Or, you might say, there's no such thing as perfect knowledge, which is why it's vital to make public as much knowledge as you can and thereby limit the imperfections.