Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
4 May 2007

Can police name and shame alleged drug kingpins?

Are members of the police just acting like lazy sods, ready to take short cuts and abuse the Constitution, or are they implementing a forward-looking crime strategy by “naming and shaming” drug dens on the Cape Flats?

After making comments on radio, suggesting that it might be constitutionally fine for the police to inform the community about drug arrests in their neighbourhoods, I received an email of complaint from someone with intimate knowledge of the communities involved. The gist of the email:

I don’t think that it is a good idea to name and shame people. The idea of having a criminal system is to deal with crime. The new strategy of the police is unconstitutional in that it breaches the presumption of innocence and secondly is a breach of the persons privacy. I did also read that the police have come out and said that they were only identifying addresses rather than people… which quite frankly is a weak excuse when they are creating the situation themselves.

I don’t agree.

I would argue that the police have a duty to inform the public about crime happening in its neighbourhood. As Jonny Steinberg has argued in Business Day, much of the fear around crime flows from on the lack of knowledge about when and where crime happens. That is why the fight about the release of crime statistics is such an emotional issue.

Telling members of the community that the police have made drug arrest, have confiscated drugs and have charged individuals in connection with such action should be part of the community policing strategy of the police. Of course, the police should be careful to do this in a way that will not invite or appear to condone vigilantism. Taking members of the community along on drug busts – which have happened on the Cape Flats – would therefore be deeply problematic because it would seem like an invite to vigilantism.

Of course, once a person has pleaded in court there is no reason why his or her name cannot be made public. In fact, his or her name would already be in the public domain. The Constitution guarantees for everyone the right to a fair trial which includes the right to be presumed innocent before a court of law until proven guilty.

However, as I have pointed out before, an accused cannot prevent his or her name from being made public. And once it is made public it is inevitable that many people will assume that he or she is guilty – just ask Dina Rodriguez. As long as the judge before the court is not influenced either way the person’s right to be presumed innocent is not infringed. Mr. Zuma and others might not like this, but this is the law.

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