Friday, 9 October 2009

Losing Something Precious

The Rights and Liberties of Freeborn Men: New Zealanders are on the verge of surrendering legal rights that date all the way back to King John's issuing of the Magna Carta Libertatum (The Great Charter of Freedoms) in 1215.

AMIDST THE CACOPHONY of angry voices calling for tougher penalties and diminished rights for criminals, something very precious is being lost. Like most precious things, it took many years to create, and the price was very high. Losing this precious thing is likely to prove a mighty tragedy – the full dimensions of which will only become apparent when it’s gone.

This precious thing is, of course, the protective shield of legal rights and privileges which safeguard the citizen against the massive, potentially obliterating, power of the State. It is a shield which took many centuries to fashion, and was purchased at the cost of countless lives.

Of what is this shield composed? Nothing less than the ancient rights and privileges of the subject/citizen – stretching back to Magna Carta and beyond.

The right to be presumed innocent until proven guilty. The right of habeas corpus (no detention without trial). The right to swift, open and dispassionate justice. The right to face one’s accusers. The right to know the nature and full-extent of the charges brought against one. The right to prepare and present an adequate defence. The right to silence. The right to be judged by a jury of one’s peers. The right to have the State’s case proved beyond reasonable doubt. The right to a unanimous verdict. The right to protection against "double jeopardy" (being tried repeatedly for the same offence).

The State hates this shield: as it hates everything which limits and constrains its power; and will seize upon the slightest opportunity to abridge, weaken, or eliminate entirely the rights wrenched from its grasp by the people.

For example, there’s the consistent failure of successive governments to adequately fund the courts. This has required those accused of wrongdoing, and its victims, to wait longer and longer for their cases to be heard. As the old saying goes: Justice delayed is justice denied.

And only last year, Parliament overturned the long-standing legal prohibition against double jeopardy. The right to a unanimous verdict, an ancient and extraordinarily important safeguard against prejudice and pressure, disappeared at the same time.

And just this week, the Minister of Justice, Simon Power, announced plans for a further round of legal "reforms" – changes which could strip away even more of our rights.

At risk is the presumption of innocence (through tougher bail laws) the right to silence (by re-writing the rules of evidence) the right to a full and adequate defence (by cutting back on legal aid) the right to face one’s accusers (through the introduction of courtroom "teleconferencing") and the right to be judged by a jury of one’s peers (by introducing the European system of "inquisitorial" justice for rape cases).

It is ironic that these "reforms" are being contemplated by a National Party cabinet minister. As New Zealand’s leading conservative party, founded in 1936 to restrain state power and protect the rights of the individual citizen, National should be the most avid defender of the ancient rights and privileges of the people. Sadly, on matters of law and order, National long ago surrendered to the irrational populism of the Mob.

There is irony, too, in the Mob’s determination to throw away the legal rights their ancestors fought so hard to secure. After all, those who subscribe to the "eye-for-an-eye, tooth-for-a-tooth" philosophy of the Sensible Sentencing Trust, are the very same people who loudly condemned the depredations of the "Nanny State", and voted overwhelmingly for the right to raise their children as they saw fit – free from government interference.

So thoroughly have criminals been demonised by the Right that a huge number of otherwise sensible and compassionate people are no longer able to see that, for all but a few moments of life-transformingly bad decision-making, most lawbreakers are indistinguishable from themselves. They also seem to have forgotten that policemen, prosecutors – even judges – frequently get things wrong.

With a citizen’s liberty at stake, isn't it entirely reasonable to require the State to establish its right to lock him up "beyond reasonable doubt"?

Those who talk glibly about the pendulum having swung too far in favour of the rights of the accused, would sing a very different tune were they to find themselves suddenly – and unjustly – handcuffed in the dock.

Better to let ten guilty men walk free than imprison an innocent man.

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 9 October 2009.


Olwyn said...

I have just made another discovery re the darkened blog - if you click on the title, the article in question lights up. I am not sure the state really is a leader with regard to the obsession with transforming the way we view crime and punishment, and am inclined to think that well-funded ideologues may be the real force behind it. The idea seems to be that we should come to see everything on earth in terms of a transaction - that what is paid for harming someone reflects their inherent worth (so that if you do not bay for blood you count yourself as worthless), and it was noteworthy that the Sensible Sentencing suggested that a white business man should not be punished for stabbing to death a brown 15-year-old for writing graffiti on his garage. Let's begin with that referendum in which we were asked to say yes or no to a triple conjunction; one of the questions pertained to victims' rights, and this by itself would have gained many of the yes votes. However, I am sure that what most people had in mind when they voted was that due care and support be given to victims, not that victims should be consulted as to sentencing, parole, etc. There is a point of view that in the US private prisons represent an under-the-counter reversion to slavery, and that more concern about crime and higher sentences lead to more ready supplies of slaves. I am not sure why we are following this path here, apart from the possibility that we have come to think it is "the done thing."

Anonymous said...

Your article comes at an interesting time, Chris.

I saw a clip of our 'Great and glorious' Prime Minister John Key when talking about his crackdown on P dealers. I hope I wasant the only one who thought they were listening to George W Bush circa 2001-02.

And these measures (and more), to 'get tough on crime' are looking more and more like the measures that the Bush administration were using to 'fight terrorism' - the systematic curtailment of our civil liberties.

Those who trade freedom for security.....


Graeme Edgeler said...

The weakening of the right against double jeopardy was/is a concern. And any change to the criminal standard of proof of beyond reasonable doubt would be a concern, as would any change to the right to a jury trial but I'm not sure the right to have a conviction rendered by a unanimous body is a right at all, and certainly not an ancient one.

Now, I opposed the introduction majority verdicts, but putting them in in the same category as the other rights you list doesn't really accord with history. South Australia has had majority (1 dissenter allowed) verdits since the 1920s; Scotland has always had juries of 15, with 8 needed to convict (if a couple of jurors leave through illness etc., it remains 8 - less than 8 in favour of guilty is an acquittal).

Jury trials are supremely important. Unanimous juries are good, but not nearly as important.

paul scott said...

some of your precious comments are being lost Chris,
your web blog site has a ghastly 1971 wallpaper background, and you have to guess the best way to remove it,
its like the Q+A TV program with Paul Holmes, the back ground completely domnates attention, leaving his lack of and your brilliance unadmired,

Chris Trotter said...

Yes, there's a problem with the way some of my readers are receiving this blog.

Rest assured, the format chosen is actually very easy to read: black font on a pale yellow background. Sadly, that's not the way many of you are receiving it.

I'm at a loss to know how to fix it.

If you know of any explanation/remedy, Paul, I'd be very glad to hear it.

Anonymous said...

Chris is very eager to speak of the "rights" of the criminals, and the "rights" of the beneficiaries.

While speaking of the "responsibilities" of decent, law-abiding, tax-paying Kiwis.

It's a song we've heard before, regularly, during those nine long cold years under the Pol Clark regime.

Conversely, We never hear about the "rights" of the decent to be safe from crime and to enjoy the fruits of their labours. We never hear about the "responsibilities" of the beneficiaries and the criminals to live productive, law-abiding lives.

The fact is, most of New Zealand's ills are entirely attributable to the depradations of the Labour electorate. They're the burden that has dragged the rest of us down to the bottom of the OECD and topped us out in worldwide negative social statistics.

And decent Kiwis have had enough. We've had enough of throwing welfare at the indolent and tolerance for crime. We've had enough of crippling taxation to pay for the lifestyle choices of those who commit crime with impunity and those who simply. will. not. work.

It's well-past time to get tough. We need policies that diminish the size of the Labour electorate and disabuses them of the notion that they can parasite off the rest of us.