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.