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Attorney General has ground to make up on freedom of speech

  • December 2nd, 2007

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 the fear that  judges and juries will not be objective about evidence tortuously unfolded in court, without  bias from pre-trial publicity. The trial will be months later.
Juries report that the deliberate pace in the court is an overwhelming influence on their preconceptions. The process steers them to fresh appraisal. 

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. In origin the jury were selected for their knowledge of the accused and the accuser, to judge truthfulness with their own knowledge as neighbours.

One would not necessarily press for a return to those days, but it is high time for the courts to step back from the arcane rules that abort trials.

There are risks in gagging orders. The precedent is bad. Secrecy engenders conspiracy theories. I have never seen a rigorous attempt to weigh the risks of court bias, against the risks to the courts and their reputation of gagging attempts.

Insiders like knowing things nobody else can know. Judges are not immune. The whole openness of the internet, with its anarchic speed of access to arcane information makes them nervous. Like doctors fearing self diagnosis and on-line drug purchasing, they fear the “abuses” and mistakes people will make when armed with ‘dangerous information’. Neither profession weighs their fear against the upside. Free debate and argument enable better understanding by lay people. Mistakes can be avoided (e.g. fresh witnesses come forward). More importantly, when lay people are better informed it increases the pressures for better performance by the experts.  

The Attorney General’s office (Crown Law) has a lot of ground to make up after its ludicrously craven ‘opinion’ on the Electoral Finance Bill, and the apparent failure to warn the Police of the deficiencies in the anti-terrorism law. It is time for them to take to the courts a robust challenge to any preciousity. If the courts persist, the Attorney General can ask Parliament to send them a legislative message.

After the public service rendered by the Fairfax papers in releasing details of the Tuhoe sedition the Attorney General should be showing leadership. The Police, the Government and people are better off for not remaining in the dark about the basis for the raids and the charges. I can not imagine the disclosures now having an efffect on the eventual finding of guilt or innocence any different from disclosure in court.

Only racist organisations (like the Anglican Bishop who saw Police racism before he knew the facts) and the defendants who will have their day in court to explain the material away, are discomfited by the premature disclosure. The Attorney General should be preparing to argue fiercely in court that the courts have no warrant to assume prejudice, to ensure the defendants can not capitalise on the recent fad to elevate privacy and possible embarassment over substantive justice.

How can he make that argument if he is asserting the opposite against the Herald now?

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