Core principle of open justice being eroded by our judges
The principle of open justice is pretty straightforward. Civic society gives its consent to the rule of law and the legitimacy of the courts; in return, the law is reasonable and equitable – and the judges confirm their impartiality by opening the courts to scrutiny.
In this manner we can be sure the law, and in particular the criminal justice system because of its impact on citizens' liberty, is efficient, fair and free from corruption.
A fundamental bedrock of this is that accused people are named. This is important for a range of reasons: it helps prevent slippage into unfairness, or even tyranny, because people can't be secretly paraded in court at the whim of the authorities.
Naming the defendant also helps bring forward evidence of guilt or innocence. All this, of course, supports the ultimate prize: absolute confidence in the administration of justice.
Secret justice, therefore, is no justice at all. Unfortun- ately, as the rest of the UK embraces open justice, Northern Ireland seems to be drifting backwards.
Sometimes this even seems to happen against the wishes of the Lord Chief Justice, which is, in my opinion, a very strange state of affairs indeed.
Last month a woman appeared in court in Belfast charged with murdering her baby. The media were banned from using her name or identifying her at all and – alarmingly – were not even present at the hearing.
Frankly, this is a deeply unsettling development. Never in my career have I seen, or read of, a case where the identity of a person accused of murder has been shielded by the courts. It makes a mockery of the system of open justice.
Consider the case of Tania Clarence in London last week, charged with murdering her three children. There was no attempt to ban her name, because there would have been a huge outcry, so ingrained is the principle of open justice.
Not here. Not here, at all. In fact, our situation gets worse. Recently, the media were banned by a Belfast court from ever identifying a convicted adult sex offender. Another first for me: I haven't been able to trace another example of this in the UK.
The principle of open justice must be defended resolutely. Justice Woolf, in R v Legal Aid Board etc (1999), summed it up: "The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases."
Woolf's warning is apposite, for it's precisely what is happening here: district judges banning the names of adult defendants in drugs cases; others dishing out inappropriate anonymity orders in sex cases, and yet more judges, as I said, banning the identification of defendants in adult courts.
Prosecutors, who also represent the public, should robustly oppose applications and not act as disinterested parties.
It was, therefore, heartening last week when the Belfast Telegraph reported that the Lord Chief Justice himself had initiated a review of certain anonymity orders in Northern Ireland and, indeed, overturned or amended a quarter of them as inappropriate under the Sexual Offences (Amendment) Act 1992.
He didn't go far enough – the Act automatically gives lifelong anonymity to the victims of sex offences and the onus is on editors to ensure this is upheld. But at least it is a good start.
Also heartening was Judge John Meehan's April 15 judgment rejecting an application for anonymity orders in the case of three PSNI officers accused of offences pertaining to an alleged intent to pervert the course of justice.
But, generally, the drift is in the opposite direction. Justice Woolf is right: we need to be perpetually on guard against the natural tendency to erode this key principle.