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.

Comments (13)

by mudfish on October 30, 2012
mudfish

So it's wet bus tickets all round then. Isn't confidence in the system equally undermined by criminals getting away with things on technicalities?

Is an alternative course of action prosecuting both the 21 and the police (for contempt of court or some such)? Wouldn't that send a stronger message all round and bolster confidence in the system?

And yes, frankly I think Franks is drawing a long bow with the analogy. He does, kind of, acknowledge this in the later discussion/comments:

"...my view that the lawbreaking police should face prosecution directly – those responsible for the unlawful conduct.

My concern is about what the judge chooses as a remedy instead of seeking to punish wrongdoers in the Police. Instead he punishes the community by a free pass for the gang members...

...If you had criticised me for a disproportionate comparison, or overblown claim to parallel reasoning I would have understood it. I have risked that. But I want to underscore how wrong is the basic approach.  To me the judicial instinct in this area is the same as the terrorist instinct."

Personally, I agree with all but the last remark - I don't get it.

But Graeme Edgeler dampens my enthusiasm for Franks approach, saying the chance of prosecution of the offending police is low. Why so? All that dotting i's and crossing t's and false declarations - there's probably plenty of evidence there (unless they're busy digging a deeper hole destroying the evidence...).

by Andrew Geddis on October 31, 2012
Andrew Geddis

@mudfish,

Yes - that (prosecuting the 21 AND seeking sanction against the individual officers responsible for the wrongdoing) would be an entirely valid alternative approach. That is why one of the factors the Judge must weigh when deciding whether or not to stay a prosecution is "whether there's any other way the Police can be held accountable for their action". In the immediate case, however, Justice France (at para. 56) thought that there was only a very low likelihood any charges would be brought against any officer (even if there were an offence commited by them in the course of their deception). That conclusion was less a legal one based on the evidence of wrongdoing and more a psychological/institutional assessment of the chances that the Police would ever charge one of their own for actions taken to try and protect a fellow officer in the midst of an ongoing operation. (Remember, it is the Police that get to decide whether or not to prosecute alleged offences ... the courts cannot require or demand that they do so!) And it seems an entirely accurate assessment to me ... I really can't see the Police turning on their own in this situation (where you don't have a "rogue officer" who deliberately breaks the law, but rather a group of investigating officers that thought (wrongly) that their actions were permitted under existing Police procedures).

What this practical (even if not theoretical) absence of alternative sanctions then means is that either the Police (or, at least, some individual members of the Police) are allowed to "get away with" misusing the courts and the criminal justice process in order to conduct their investigations, or the 21 accused are allowed to "get away with" their alleged offending. Neither of which are optimal outcomes - meaning the Judge has to decide which is the "least bad" result (after considering the various factors outlined in my post). And Justice France obviously decided that a situation where the Police (or, at least, some individual members of the Police) are permitted to treat the courts and the criminal justice process as little more than a convenient extension to their investigative procedures has worse potential long term consequences for society than does letting some moderately bad people evade possible sanction for some moderately bad behaviour (selling drugs mainly to each other, but also some members of the wider community).

Finally, I'd note that this form of reasoning is then nothing like the reasoning terrorists (much less Islamic terrorists, the very, very worst sort!) apply when justifying murdering random strangers in order to bring some defined religious/social/political end state into being ... unless one wants to be so ridiculously reductionist as to claim that because both Justice France and Islamic terrorists "consider the consequences of their decisions" they are thinking in the same way.

by Ross on October 31, 2012
Ross

Franks says: "To me the judicial instinct in this area is the same as the terrorist instinct." His point is that there is collateral damage from the actions of terrorists and from letting criminals walk free. I guess in principle that could be true. But it seems to me to ignore a fundamental point: terrorists presumably know they are breaking the law, while in this case (and others like it) a judge is seeking to uphold the law. Franks wants the police charged but I don't see how that necessarily fixes the problem. Depending on how the police are punished, they may feel it is a reasonable price to pay in order to catch potential offenders. 

by Andrew Geddis on October 31, 2012
Andrew Geddis

@Ross: "[Franks'] point is that there is collateral damage from the actions of terrorists and from letting criminals walk free."

No - Franks explicitly distinguishes cases of "collateral damage" from acts of terrorism. If his point simply was that the Judge's decision may cause future harm (in the form of future victims) then that would be undeniably true - but also not very interesting. But he seems to think he's saying something deeper (and thus more interesting) than that. It's just I can't for the life of me work out what it is.

by Scott Chris on November 01, 2012
Scott Chris

I suspect that Justice France's decision was tinged with emotion. The justice system may have been 'used' but I don't think it was 'abused'.

From my perspective the good outweighs the harm within the context of our stupid drug laws.

by Scott Chris on November 01, 2012
Scott Chris

Perhaps it could be said that the justice system takes itself a little too seriously - or on the other hand perhaps we, the general public don't take the justice system seriously enough. Or a bit of both.

by Dennis Horne on November 04, 2012
Dennis Horne

Thank goodness I am not clever; blinded by my own brilliance.

I took Franks' comment to simply mean: The Islamic terrorists are fcuked in the head.

I vaguely remember being a dentist once. A patient whose family member had not paid an account requested an appointment. I refused. He could go elsewhere.

What I didn't do was see the patient and add the unpaid bill to his. That is more or less what this judge has done. He was duped. He was angry. We pay the price.

by Andrew Geddis on November 04, 2012
Andrew Geddis

Scott,

Why do you suspect Justice France's decision was "tinged with emotion"? There's no particular sign of it in his judgment. And, sure, reasonable minds may differ on the balance he struck in his decision ... now that the matter has gone to appeal, we may find the Court of Appeal differs in its views.

Dennis,

I'm not sure why you are so happy that you are ignorant, but if that was all Franks meant, then it is a spectacularly uninteresting observation. And I don't think Stephen Franks thinks he is an uninteresting person.

As for your dental practice analogy, I don't understand it. In fact, it seems to simply substitute one rather strained comparison for another rather strained comparison. Which is unnecessary - the issue doesn't need to be "like" anything else ... it is what it is.

by Dennis Horne on November 04, 2012
Dennis Horne

Andrew, I didn't say I was ignorant, I said I wasn't clever. But of course I am ignorant. How perceptive.

I think the analogy demonstrates exactly what happened. I've been pissed off too; thrown the ball out of my court. The cost was only to me. I could have made someone else pay. I guess I'm just honourable, just not The Honourable.

The rigmarole about protecting the court is chaff. Makes it hard to hit the target, takes the heat off it. Called motivated reasoning, isn't it? 

As for things being what they are, not "like anything", where is your knowledge of psychology and physics? We don't even know for sure we are here, and you're assuming some model you have in your mind is real, and what others see?

I don't know if Franks thinks he is an interesting person, but I'm sure he does and says some uninteresting things, and makes mistakes. I mean, we all do. I read in another article, one author correcting another for writing "tarrif"  -  saying he had mispelled it. Misspelled?

by Andrew Geddis on November 05, 2012
Andrew Geddis

Dennis,

You (like Scott) attribute psychological motivation to Justice France (he was "pissed off") without any real evidence. Perhaps you could point to a part of the judgment that reveals such anger with/desire for retribution against the Police? Or are we simply freely speculating on what the judge "must have been" thinking based on whatever past experiences we may or may not have had in completely unrelated professions involving completely unrelated issues? In which case we're not really doing anything very interesting.

But insofar as you are saying that Justice France imposed a "cost" (whether it be on the Police or the Community at large) as a result of an action he believed necessary to protect another value (the integrity of the criminal justice process) ... yes. That is exactly what I said he did. Whether or not he was right to do so is now in the hands of the Court of Appeal. But it doesn't mean he was "thinking like a terrorist". Nor does it mean he was acting like some dentist stiffed on a bill did at some past point in time.  He did what he did - and perhaps that would be the best basis for discussion.

by Dennis Horne on November 05, 2012
Dennis Horne

Andrew:  "Whether or not he was right to do so is now in the hands of the Court of Appeal."

Are you telling me that The Law is reality? Goodness. You mean lawful, surely? Correct, possibly, but not "right". The law is not even justice, let alone truth.

Greg King took Scott Watson's case to the Privy Council and Watson is still in jail, despite the fact witnesses saw the kids climb onto a particularly different yacht that Plod Pope refused to acknowledge existed, let alone look for. The law is satisfied and the lawyers satisfactorily paid. That is important.

Sometimes judges' hands are tied by the law but was it in the gang case? I understand not. It was a judgement. Judges make judgements and they make them exactly the same way as anyone else; based on their understanding of the facts and people. Essentially, their view of the world moderated by the law.

Unless you can point to me where it says that if the police commit skulduggery the case must be dismissed, I am entitled to make my own judgement. Furthermore, even if the law is right, I am permitted to take a broader view. And I know a great deal about people, boring dentist I may be.

Are we supposed to believe (part of) the reason the judge dismissed the case had nothing to do with feeling offended because he didn't say so, and would have said so had he been? You are conflating stupidity and madness.

Tell me, if a young woman seeks advice about avoiding rape, will you tell her men should not rape women, it's illegal? Or will you perhaps suggest it's not a good idea to go to a hotel room at 2am with some bloke she met in the bar at 1am?

If a friend rings and says, "Mate, can I come and see you, she's left and taken the kids", would you reply that that's not against the law? Or could you, at the risk of appearing uninteresting, talk with him?

by Andrew Geddis on November 06, 2012
Andrew Geddis

Dennis,

Of course emotion/passion grounds "rational" analysis - anyone who has read Hume knows this. But to go from that insight to say that Justice France was somehow unthinkingly reacting to his personal feelings about the Police's actions (in the same way as you took your irritation at not being paid out on some unfortunate family member of the guilty patient) misrepresents how judges think and how the law works. And if you (or others) are not saying that this is what happened in the case, then I don't know what value your comments have other than to state the blindingly obvious: in deciding how to respond to  the Police's actions, the judge of necessity must decide how "outrageous"/"wrongful"/"abusive" those actions were, which in turn will evoke emotions within the judge, which in turn will be a factor in how the judge decides to balance the various factors discussed in my post. But the point of those factors is to get the judge to go beyond a mere gut-level/knee-jerk response to the issue and to turn her/his mind to broader concerns - as well as to force the judge to make clear her/his reasoning process (even where this is a response to an unavoidable emotional view of the issues in the case) so that it can be assessed on appeal by the Judge's peers (each of whom will have their own unavoidable emotional responses to the issues that the case raises). That's how the law works - and it's through that process that "legal truth" is created.

So to say that emotion played a role in the judge's decision is either to state the blindingly obvious (because emotion plays a part in every form of human reasoning), or is to make an unsubstantiated and unprovable claim about what the judge really was doing here (simply giving vent to his emotions in an unreflective and instinctive fashion). Neither of which are very interesting things to say.

But, as I say, this issue now lies with the Court of Appeal. I'm going to wait to see what they say before making any further comments. If you want a final word, no doubt containing some other contorted analogy, then feel free to have it.

by Dennis Horne on November 06, 2012
Dennis Horne

Thanks, I will have the last word. I'll try to work in some analogies for you to criticise.

There was no absolute need to throw the case out. There was no suggestion of fake evidence. Could he not have torn a strip of the police, and got on with it?

Anyway, in what way does this enhance the courts? Men going free who possibly committed serious crimes? Two wrongs make a right?

That is not to say the judge broke the law. So no doubt his peers will uphold his opinion. Birds of a feather stick together.

That is how the law works. That is why Peter Ellis is still a convicted paedophile. Despite fake evidence. That is why his mother will go to her grave knowing the law is an ass.

This judge was making a point, throwing out the people who offended him. Just as this dentist made a point by throwing out the people who offended him. I don't think that is a weak and contorted analogy. I think it hits the nail on the head. The only difference is he threw the baby out with the bath water. 

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