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Supreme Court and open courts

  • November 17th, 2007

Tomorrow TV One’s Sunday programme will show us the ‘confession’ video the jury was not allowed to see before they let Noel Rodgers walk free on a murder charge. I salute TV One for pursuing the case, and the Supreme Court decision that (in this case) openness outweighs Rodgers’ privacy claim.

A pattern of Supreme Court decisions against court secrecy is delicately pruning three decades of erosion of our British inheritance of open courts. That trend may help the Fairfax papers.

More significantly, if the Rodgers video stirs up outrage, perhaps the judges might even be persuaded to revisit judge-made rules that deny victims justice. The courts exclude evidence that police have collected in a way the judges don’t like. They’ve made up these rules themselves, though some Parliament-made law now reflects that approach. The theory is that if the evidence will not be useful, then Police will not collect it in that way. The problem is that the rules about what the police can and cannot do have become ever more remote from what should be the over-riding concern (what is the truth). The exclusions ignore the victims’ right to see justice done. 

In effect when the courts feel there has been Police misconduct, instead of punishing the Police, they give the wrongdoer a windfall free pass, and punish the victim.   It is consistent with the justice system’s casual dismissal of the victim’s interests throughout the centuries since the Crown seized the victim’s right to pursue the wrongdoer. System apologists justify Crown exclusivity on crime on the untested fear that victims would get “undue influence” under any other system.

But it was not highminded determination to protect the rights of innocent accused that lead to our current system. The Crown asserted that crime was an offence against the King’s peace (first on the King’s roads, then throughout the country) for far more venal reasons – to profit from seizing the assets of wrongdoers.

French law allows to victims full party rights in criminal trials. When I asked French lawyers about it in 2003 none mentioned any miscarriages of justice attributable to it. Whenever any relevant law came before my Select Committee, I suggested changes to prevent the judges excluding evidence that pointed to the truth, and instead punish the procedural wrongdoer directly, but the committee was far too respectful of the status quo.

A reform is well overdue. The Courts should ask Parliament to create offences of which they can convict cops who break the evidence rules. Securing conviction and penalty is the way they insist that other people enforce rules. It is time they practiced as they preach. Sure, it will make it harder for judges to invent new rules about Police behaviour as they go.

But witnesses must promise to “tell the whole truth”. It is time to restore meaning to the part of the oath. There is no addition to the oath saying ” except when the judge is not happy about the way the cops behaved”.


  • MikeNZ
  • November 19th, 2007
  • 8:14 am

The Judiciary give up a right ?
You jest.
Why isn’t there full disclosure of evidence as in other country’s.

  • Jim Maclean
  • November 19th, 2007
  • 9:55 pm

Once again Stephen Franks has succintly put what I have struggled to argue for decades.
Bravo Stephen, when will people insist on common sense in the Judiciary?

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