Overused gagging orders are thwarting true justice
'Super-injunctions'. Anonymity orders. Open justice is now under threat as never before, says Walter Greenwood
David Cameron talks of the 'Big Society.' Others speak of the Open Society. It is often said that, here in the United Kingdom, we do have a more open society now that we have the ability to learn more about the workings of some sectors of government.
The courts, however, sometimes seem to move in the opposite direction and towards secrecy.
Restrictions have been imposed all too freely across the water. Judges sitting in London have issued many injunctions preventing footballers and television stars from being identified to the public (and sometimes to their commercial backers) in newspaper articles about the questionable lives they lead behind the scenes.
On occasions, the so-called 'super-injunction' has been granted preventing any mention whatever - even without names - of the very injunction itself.
Secret justice is no justice. It was wrong that, last Thursday, a district judge sitting at Belfast Magistrate's Court issued an interim order that a man accused of raping and imprisoning another man should not be identified.
It was pleaded in court that naming the defendant would infringe his human rights and that it would be a threat to his safety, owing to the nature of the offence of which he was accused and owing to his previous convictions.
No wonder, then, that a member of the Northern Ireland Assembly's justice committee should describe the order as ludicrous and a case of political correctness gone stark, raving mad.
It was a surprising order, because there have been countless cases emphasising the importance of open justice.
In 2008, the Judicial Studies Board for Northern Ireland issued guidelines on reporting restrictons in which it said that nothing should be done to prevent the publication to the wider public of fair and accurate reports of proceedngs unless there was a good reason. This was not a good reason.
Anonymity for the accused is not usually recognised in law. Lord Justice Watkins said, in 1999, that it was wholly illogical for an order to be made when the name was freely used at a public hearing.
He added that there were many people facing criminal charges who would like to keep their identity unrevealed.
The law was not for the benefit of the comfort or feelings of defendants, he said.
The courts in Northern Ireland, however, have been known to make anonymity orders, misinterpreting the Sexual Offences Act, to protect men accused of sexual offences on the specious grounds of protecting the identity of the victim - a type of order that is, hopefully, dying out.
In the High Court in Belfast in 1997, in a case involving the Belfast Telegraph's sister paper, Sunday Life, Lord Justice McCollum said a possible attack on the defendant by ill-intentioned persons was merely speculative and shoud not cause the court to depart from well-established principles.
Open justice is enshrined in UK common law. In an oft-quoted judgment in the House of Lords in 1979, Lord Diplock said the principle could be departed from only where the general rule in its entirety would frustrate, or render impracticable, the administraton of justice.
In the High Court in London earlier this year, Lord Neuberger said an order for anonymity, or for prohibition of any normally reportable details of a case, was a derogation from the principle of open justice.
He said: "In general terms, crime is a disfiguring feature in our society, which needs to be exposed to public view so that society as a whole can address the many issues it raises.
"During the course of a criminal investigation, the police need all the help they can get. The publication of reports may trigger memories amongst readers, or viewers, and lead witnesses to come forward."
The cards are well and truly stacked against anonymity for those accused of crime.