Monday, 3 December 2007

Gagging justice

The Attorney General's threat to gag Herald reports on earlier details of the man accused of murdering Emma Agnew highlights again the disturbing trend to hide what's going on in our courts, just as it was highlighted in the orders for name suppression and evidence suppression in the recent 'Urewera 16' bail hearings.

In recent years New Zealand's courts have admitted TV cameras, but at the same time have more and more frequently enforced orders suppressing information about what's going on inside those courts. We can see pictures, but we're not allowed to know who's on trial, and what the evidence against them is. Picture but no sound. We're being treated like children, and there's little justification for it.

Name suppression, evidence suppression -- these recent high profile cases in which the media have been gagged from reporting details that would help we the people ( in whose name the courts are operating) to judge for ourselves whether justice is being done have highlighted this unfortunate predilection for gagging orders.

I've argued before that "It's unfortunate that our courts seem to have forgotten the crucial principle that underpins their work: that justice must not only be done must must be seen to be done. When justice is kept under wraps, all sorts of nonsense appears in the vacuum... Why do the courts consider us so immature that we can't handle hearing the evidence for ourselves in media reports, instead of hearing only the nonsense that its absence has generated?"

Stephen Franks blogs a robust discussion of this "recent fad to elevate privacy and possible embarassment over substantive justice" that's worth considering:
The Attorney General is telling the Herald to suppress its old stories on the man accused of murdering Emma Agnew. I hope the Herald tells the Attorney General to stand up for a change for freedom of speech and open justice.

The law around pre-trial contempt of court (and sub judice) is based on the theory that the risk of biasing judges and juries outweighs freedom of speech, including open disclosure of what is known and obtainable by insiders, or those determined to find out.

I am not aware of any balance of evidence to support [this] fear... Indeed the attempt to treat juries like computers, cleansed of any pre-knowledge, and sheltered by evidence exclusion rules from anything a judge patronisingly considers prejudicial, turns upside down the original justification for a jury of your peers.
When justice comes with gagging orders, then justice is neither being done, nor seen to be done. It's time to reconsider their popularity.


  1. I think I can kinda get my head around why the law tries to pretend that a person's past actions (including criminal history) should not be a ble to prejudice a fair trial.... kinda..

    But surely, nobody should be protected indefinitely from the public and jurors knowing what kind of peope they are if they are on trial for a crime?

    I this case, the man obviously changed his name to attempt to hide his past actions. Well, this has come back to haunt him, and rightly so in my opinion.

    I realise that this isn't (at least, yet,) the case here, but it seems that many criminals are found AFTER being found guilty to have perpetrated many similar crimes before. This is obviously stupid and it is a perversion of natural justice to hide the facts from juries and the public.

    I would propose a 'three strikes' rule. If a person is on trial for a jailable offence, then it should be known by all if they have previously been convicted of more than two jailable offences.

    And in this case, the public and the judicial system has a definite RIGHT to know what sort of man we are dealing with here. After all, in a jury trial, the prosecution still has to present the FACTS of the case... and it should all be done in an open and transparent manner.

  2. Interesting this idea of controlling what information is available to public and juries (presumably so that they are tabula rasa). Most interesting that the argument is turned on its head with regard to insider trading and the so-called economic equilibrium models (you know, perfect information equally available to all participants and all that).

    Funny how the powers that be are so compartmentalised in their thinking and action.


  3. By their deeds you shall know them...unless they are airbrushed out of history.

  4. I find this kind of thing far more worrying than the EFB.
    No justice, no hope of maintaining a civilised society.


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