Blogger applies really silly analogy to Red Devils case

Steven Franks thinks Justice Simon France thinks like a terrorist. And not just any terrorist, but an Islamic terrorist ... because we all know that Islamic terrorists are just the worst sort of terrorist to be.

You are the Police. You think that a newly formed group of motorcycle enthusiasts in Nelson (oh, alright ... a gang) called the Red Devils is really a front for a much nastier organisation, the Hells Angels. And you want to stomp on them before they can get involved in any really serious, harmful criminal wrongdoing.

So you set about collecting evidence against them, including by sending in a couple of undercover officers to try and infiltrate the organisation. Which is working, until gang members start getting suspicious about one of them and wonder if he might not be a "nark". Which then gets you worried; do you pull the officer out to ensure his safety but thereby risk tipping off the gang to your investigation, or can you somehow keep him in place while convincing the gang members that he's really OK to deal with?

Well, you decide to pursue the latter option by puffing up the undercover officer's criminal credentials. This you achieve by creating a fake search warrant (complete with a false signature by a non-existent court official) which you then use to "search" the undercover officer's lock-up. Then, using the "evidence" that you find in this lockup, you "charge" the officer with various offences (but without telling the judge that the charges are actually just cover for your operation). And then you have the officer miss a couple of court dates, so that the court issues bench warrants for the officer's arrest (again without knowing that it's all a part of a charade).

Doubts about his bona fides successfully assuaged, the undercover officer is able to stay in place until the investigation is complete ... whereupon the Police arrest a whole host of the gang's members and charge them with various drug offences (as well as being members of a criminal organisation), whilst also applying to the court to have the charges against the undercover officer dropped.

All of which is fine and dandy. Thanks at least in part to the commited efforts of the undercover officers and some creative thinking by his superiors, a potentially serious threat to the law abiding members of the Nelson community is nipped in the bud. Until, that is, the lawyers for the accused find out how the Police went about burnishing their officer's cover story. Whereupon those lawyers go to the High Court seeking to have all the charges against their clients dismissed on the basis that the Police's investigation - complete with fake search warrants and charges brought before an unwitting judiciary - constituted an abuse of the legal process.

it's important to note what that claim involves. It isn't that the direct evidence against the accused was unlawfully obtained; none of the accused's rights were implicated by the Police's actions. (There is no right not to be tricked into thinking that someone is a member in good standing of the criminal fraternity, rather than a member of the NZ Police force!) Instead, it was that the operation mounted against the Red Devils was conducted in a manner "so contrary to proper and acceptable practice" that the Courts simply ought not to allow the charges stemming from it to be heard. The reasons why a court might choose to do so were outlined by the Court of Appeal back in 1980:

The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse.  It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law.  It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression.  The yardstick is not simply fairness to the particular accused.  It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him.  That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement.  It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.

How a court then decides whether or not any given abusive (read, unlawful and/or improper) behaviour by the Police ought to result in charges being "stayed" (read, put on ice and not heard) involves a pretty standard balancing test. You look at a range of factors like the nature of the unlawful and/or improper behaviour, whether it was carried out deliberately, any reasons for urgent action on the Police's part, whether there's any other way the Police can be held accountable for their action, and the severity of the alleged offending that is being prosecuted. Then you do your best to weigh them all together to see whether the potential harm to the integrity of the criminal justice system posed by the Police's unlawful and/or improper actions is so severe that it justifies allowing some potential criminals to escape sanction for their wrongdoing.

You can decide for yourself just how well Justice Simon France carried out that balancing test from his judgment, which you can get from the link in the middle of this NZ Herald editorial (which in turn supports his overall conclusion that the Police's actions were so great a misuse of the criminal justice system as to justify issuing a stay of proceedings). And so the 21 accused Red Devils members walked free from the courtroom.

The response to this decision was then by-and-large what you might expect. John Roughan professed amusement at the Police's antics, but couldn't see why their fun-and-games ought to result in a bunch of crooks getting away with murder (or, rather, mid-level drug dealing and (possibly, but possibly not) being part of an organised group with drug dealing intent). Catriona MacLennan took the view you'd expect of someone who hosts a "Know Your Rights programme" by portraying the Police's actions as part of a "pattern of illegality on the part of the police [that] appears to be so pervasive that outside eyes are required to remedy the situation."

Perhaps a somewhat more surprising point of view came from Nelson's local newspaper, the Nelson Mail. Rather than angst over how a High Court judge has left the community exposed to a dangerous criminal group, the paper's editorial ripped into the Police for displaying "a self-centred, careless culture that ought to have every law-abiding New Zealander asking that important age-old question: who will guard the guards themselves?" Which perhaps goes some way to vindicating Justice France's concerns about how the Police's actions had the potential to undermine public confidence in the basic integrity of the criminal justice system itself.

But by far the most unusual take on Justice France's decision has to be that of Wellington lawyer and sometime MP, Stephen Franks. In a blogpost titled "Judge applies islamic terrorist principles in Red Devil case", Franks somehow manages to equate the balancing exercise conducted by Justice France with the mindset of terrorists (no, no ... sorry ... Islamic terrorists, because they are the very worst kind of terrorist, as we all well know).

Whilst recognising that Franks' comparison of Justice France's decision with actions such as this is both absurd and insulting to those who have been victims of such violence, I'd like to explain to you exactly why he thinks the two reasoning processes are the same. However, I just can't understand him. At some points he seems to suggest that because both Justice France and terrorists are prepared to see innocent civilians harmed in order to achieve their higher ideals, they think in the same way. Except that, as Franks himself notes, "[Terrorists] believe their objectives are so pure that the deliberately caused suffering of the innocent is just a necessary price. Their ends justify their means." The italicised part then makes a pretty big difference - unless Franks really wants to accuse Justice France of setting out to deliberately inflict harm on future victims of crime.

Because it is true that letting these accused walk free from the charges they face may mean that they go on to commit further offences against other victims. (Of course, that's true any time an accused person walks free from a court for any reason, but let's put that to one side.) The potential harm caused by allowing a guilty person to escape sanction for their wrongdoing (including removing a dangerous offender from the community) is why the severity of the alleged offending is one of the factors a judge must balance when deciding whether or not to stay proceedings. However, to then say that Justice France actively wants the 21 accused to commit further offences because such future harm in and of itself somehow helps further the interest in preserving the integrity of the criminal justice system is outright nonsense. And it is that intent that matters - as Franks himself notes when he distinguishes the deaths of civilians as "collateral damage" in military operations from acts of terrorism.

So unless Franks is saying something as assinine as "terrorists hurt civilians, Justice France's decision might hurt civilians, so Justice France thinks like a terrorist ... and an Islamic one at that!", then his comparison breaks down on the point of intent. And intent is, as he himself notes, the defining characteristic of the terrorist mindset.

At other points, however, the "innocent victims" of Justice France's terrorist-like reasoning seem to be the officers involved in bringing the charges against the Red Devil's accused. Punishing these officers for the wrongdoing of other police officers is to impose a form of "collective guilt", whereby it is acceptable to harm any member of the target group for the wrongs done by any other. And that's just what terrorists do when they identify individuals as being a part of "enemy" groups.

Except, of course, the police officers involved in the abuse of process that led to the charges being stayed were the same officers who were in charge of the investigation in question. So Franks point, such as it is, rather falls down on the facts. But more importantly, portraying the decision to stay proceedings as being some sort of "punishment" for the Police as an entity completely misrepresents what Justice France (or any other court) is doing. It isn't a case of saying "Officer X did bad thing Y, so should I get back at him/her by chucking this case out of court (even if that actually ends up hurting Officer A and B instead)?" Rather, it requires looking at the potential harm that the "bad thing" may do to the overall integrity of the criminal justice system - and the Nelson Mail editorial is evidence that the Police's actions did cause potential harm to the public's trust and confidence in that system - and assessing whether the only cure for the harm is to excise it completely. Any effect that this may have on individual police officers is completely beside the point.

Or, let's reverse the situation. If Justice France had decided not to stay the proceedings, would Franks regard this as being a judicially bestowed reward to those officers involved in the creation of the false search warrant/filing of false charges before the court? And if so, wouldn't Justice France then be displaying the thought patterns of a mob boss by allowing those officers to profit from flouting the law? (See how quickly you can get silly by reaching for the extreme analogy with very little basis for the comparison.)

Now, I get that Franks thinks Justice France made the wrong call here. That's fine - it was, after all, a balancing exercise that requires multiple factors to be considered and so reasonable minds may differ on the outcome that ought to emerge. But to then go from saying that a Judge has failed to properly weigh things like the importance of ensuring that guilty parties do not escape punishment for their actions to alleging that a Judge was thinking like a terrorist when making his decision is not only very silly, but it is corrosive of trust in the very institution of justice that Franks claims to be so concerned with protecting. And that truly is cutting off one's nose to spite one's face.