Another Imperator Fish exclusive

Lock him/her/them up!

So-and-so has been found guilty of such-and-such. That piece of scum deserves to rot in hell for what he/she did to that other person/those other people. What a terrible crime/series of crimes!

The Macdonald Trial: What The Jury Didn't Know

With news that Ewen Macdonald is unlikely to win the Manawatu Farmer of the Year Award in the foreseeable future, the question people are now asking is whether the jury got it wrong in his murder trial.

Thanks to numerous crime and forensics TV shows we are all now experts in criminal investigations. As a result of shows like Criminal Minds we now know that a person who commits cruelty against animals and likes to set fires is a high risk of turning into a serial killer.

If we apply this reasoning it is clear who killed Scott Guy. Special Agents Hotchner, Morgan and Rossi would be in no doubt as to who the murderer was.

It's a shame that jury members don't get the opportunity to watch episodes of shows like CSI and Criminal Minds while they are deliberating. I know some people say they're only TV shows, and that the real job of investigating crime is not even remotely as efficient or speedy as it appears on the telly, but I reckon that's just a cop-out. The make-believe crime-fighters on our TV screens are making the real ones look bad, so it's time the real ones lifted their game. We expect immediate turnaround on those DNA results, and we expect each lab person to be an expert in every field of science and technology.

And another thing: why are most of our real cops and detectives so average-looking? I don't wish to sound sexist, but it can't be a coincidence that the women characters on CSI solving crimes in record time are all slim, well-dressed and sexy. Maybe the police need to review their recruiting practices.

Back to the Macdonald jury. They knew about the damage to the Guy home, but they didn't know the full extent of the charges Macdonald was facing. They were only entitled to consider the evidence before them, and that evidence did not point to Macdonald being the murderer. So while the verdict was arguably "correct", it doesn't mean Macdonald didn't kill Scott Guy.

It now seems as if the Crown case was lost when the Crown failed to convince the judge that details of Macdonald's various nefarious activities ought to be admissible. Had the jury had evidence of all the offences Macdonald has now pleaded guilty to, their verdict may well have been different, but that is mere speculation and we won't ever know for sure.

But let's not lose sight of the real villains here. If the police had been as efficient as the CSI guys they would have nailed the killer of Scott Guy within a day.

The Macdonald Trial: Did The System Work?

It’s difficult to go anywhere near the news media or internet without stumbling across masses of misinformation about our criminal justice system.

I don’t really mind that some people think a killer got off. Only one person really knows if that’s true (or two people, if Macdonald wasn't the killer!), assuming he hasn’t confessed his sins to his priest or therapist. So anyone who opines on whether or not Macdonald did the deed is just blowing hot air and should be ignored.

I was critical of the Crown’s decision to prosecute on the basis of what appears like flimsy evidence, but I don’t have an opinion on whether Macdonald got away with murder. He may have. However, the jury got it right. The fact of the matter is that juries can only decide on someone’s guilt on the basis of the evidence put in front of them.

In that respect the Crown failed. Macdonald was acquitted, not because he didn’t kill Scott Guy, but because the Crown couldn’t prove that he did.

One apparent controversy regarding this case is the fact that Ewen Macdonald didn’t take the stand in his own defence. This seems to have irked Wellington writer David Stevenson* to such an extent that he’s written a column in the Herald today on how he thinks the legal system is failing us.

I don’t for a moment think our system is perfect, and we all know of instances where someone has been subjected to a gross injustice via the court system. But however imperfect our system is, it beats most of the alternatives. Our system has evolved over centuries, and it will continue to evolve. What we don’t need are sweeping changes being introduced without much thought for the consequences.

Take the right to silence. David Stevenson thinks it should be abolished.

… (according to Halsbury's Laws of England) it evolved more than 200 years ago because the legal establishment felt that the uneducated criminal classes should be protected, as a matter of fairness, from incriminating themselves.

Can a law designed to protect uneducated ancient Britons from themselves have any place in today's educated society where personal accountability is required in all other aspects of life?

The right to silence is not some archaic legal principle that has no value in today’s legal system. The right is inextricably linked to the presumption of innocence. If we believe in the presumption of innocence, then it is for the agencies of the state to prove a person’s wrongdoing. If we are now to say that accused people must take the stand, we are really saying we think they are guilty and that it is for the accused to prove otherwise. That is effectively a presumption of guilt.

Stevenson blames the legal aid system on the fact that some people have the nerve to defend themselves:

The dysfunctional role that legal aid can now play in criminal trials also deserves scrutiny. Legal aid was introduced to ensure that those facing criminal charges had access to legal advice and representation.

Again, because a criminal trial is not held to establish the truth but sets out to establish whether the prosecution can prove its case beyond reasonable doubt, legal aid often gets used (perfectly legally and properly under the present defective system) to fund evidence to cast doubt on the prosecution case.

But that’s absurd. Legal aid has been cut to the bone, and the pay structure is such that there are now perverse incentives for lawyers to encourage their clients to plead guilty.

It’s even more absurd when you consider the vast resources available to the police and Crown. The prosecution in a major trial will typically have a large team of lawyers and experts, and police witnesses eager to nail the accused. Against this army the accused will typically have a small team, perhaps only one lawyer, and may be left at the end of the trial financially crippled.

A common tactic used by police (as any criminal defence lawyer will tell you) is to overcharge an accused person, in the hope that they’ll cop to a lesser plea. Another tactic they sometime use is to pursue a weak case right up to the very day of hearing, before suddenly dropping the case. They do this in the hope that the pressure (emotional and financial) on the accused will force a guilty plea.

And what will the average defendant have to counter this all? Probably a lawyer funded through legal aid, but a lawyer who’s already overworked and underpaid, and who can’t afford to spend too much time on preparation.

This is why we need to maintain the right to silence and the presumption of innocence. The playing field is not an even one, and it never has been. With the resources of state law enforcement agencies growing and becoming more sophisticated, and with more and more surveillance rights and special powers being granted by Parliament to law enforcement agencies, the right for a person accused of a crime to say nothing is more important than ever.

Stevenson suggests a number of other reforms, that he claims if implemented would reduce the number of trials. Presumably this would be because the scales would be tipped so unfairly in favour of the prosecution that accused persons would plead guilty at an early stage. That would be a good thing if everyone charged with an offence was guilty, but that is not the case at all.

It's obvious that the not guilty verdict will not bring "closure" to the family of the dead man. That's regrettable, but our system isn't designed to do that. It's designed to determine whether there is enough evidence to hold a person accused of a crime guilty. I almost sense from Stevenson's argument that he thinks Macdonald should have gone down for the crime, regardless of the lack of evidence directly tying him to the killing, just to make the Guy family feel better.

And one final comment on the Macdonald verdict. I’m fairly confident that the jury’s decision would have been the same even if they had all read Hamlet.

And the next person who quotes King Lear will be very, very sorry indeed.

* Is the writer of the opinion piece this David Stevenson? I honestly don't know. I suppose it's a common enough name. Does anyone know if they are the same person?

A Crime News Toolkit For Journos

Never let anyone say I'm only interested in helping out journos who report fluff entertainment news.

I'm also here to give those hardboiled crime reporters a helping hand. It can't be easy having to ring up grieving families in order to get a scoop, so hopefully I can make your job of forcing them to relive their terrible trauma just a little bit easier.

I have prepared below a template for you to use in at least half of all the crime stories you write. All you need to do is fill in the gaps!

The [mother/father] of [one of] the victim[s] of a notorious [murderer/rapist/sex offender] has slammed the corrections system, after the Parole Board's decision to release the man back into the community.

[name of bad person] was sentenced to [insert number] years' imprisonment in [year] after [recite gruesome details of his crimes. Yes, his. It's always a man]. [surname of bad dude] was released from prison last week after serving [number] years of his sentence.

At the hearing the board noted that [name] [list all the various mitigating factors. e.g. no threat to the community, remorseful, made good progress, found Jesus, good family support, previously blameless life, etc etc..]

But relatives of [name]'s victim[s] told the board that [reiterate that he a bad bad man]

In making its decision the board acknowledged [mention his risk of reoffending, acknowledging seriousness of what he did etc.], but noted [insert here some more shit justifying the release].

[name of victim's parent], the [mother/father] of [victim's name], has blasted the Parole Board's decision.

"[bad man, destroyed family, is monster, let down by system, evil etc etc]", [name] said.

"No family should ever have to endure what we've had to go through", said [name].

The Sensible Sentencing Trust has also attacked the board's decision.

"[Parole board out of touch with reality, symptomatic of wider failings of justice system, no respect for the law, wet bus ticket, PC lunacy, liberal do-gooders, outraged, some people can't be rehabilitated, pure evil, life should mean life, clever lawyers manipulating the system for their clients, enough is enough, I speak to the parents of the victims all the time, this isn't justice, moral decay, we can't go on like this, scumbags, an insult to victims, this man has never shown an ounce of remorse for what he did, it's a bad joke, personal responsibility, where's the justice?]", said the group's spokesperson Garth McVicar.

Right Thinking: Frank's Law

Hard-hitting conservative columnist Dr Frank Shizenhausen returns with a powerful new column

There’s a petition under way to demand a toughening of our bail laws.

This is timely, because it has been a long time since we last had a debate on our bail laws—at least a couple of weeks.

Proponents of “Christie’s Law” want to make it harder for people presumed innocent to get bail. If they’ve got a history of violent crime or are charged with a violent offence punishable by more than two years’ imprisonment, bail would be automatically denied. Police would also have the right to veto a judge’s decision to grant bail, and judges would be reviewed on their performance and could be sacked if they were not protecting the public.

I am appalled by this series of proposals. What have we come to as a society when this is the best we can do to address violence in the community?

Why are these measures so weak?

If Christie’s Law were to become actual law, offenders would still be freed by judges, and some of these people would go on to do bad things, like commit robberies, park illegally, and join trade unions. If you allow any sort of bail system to exist then people on bail will occasionally do bad things.

The Sensible Sentencing Trust have said that bail needs to be regarded as a privilege, not a right. But demanding a reversal of the presumption of innocence isn’t the answer, because even presuming someone is guilty until proven otherwise would allow some weasel lawyers to get their despicable clients of the hook.

The problem is not that the threshold for granting bail is too low, but that we are letting people out on bail at all. If we simply incarcerated anyone who looked like they might one day cause trouble (and we may as well include feminists, environmentalists and Hone Harawira in this category) we would see a marked reduction in the number of offences committed while people were out on bail.

Christie’s Law is a weak attempt to deal with the problem of people being unpredictable and doing bad things despite the best efforts of judges. It’s no use just criticising someone else’s effort to deal with the problem , so I have drafted my own set of proposals, modestly entitled “Frank’s Law”. Here are the highlights:

• Bail won’t be granted for anything punishable by imprisonment. Ever.
• Everything will be punishable by imprisonment.
• Offenders can be kept locked up indefinitely if the talkback community deem them too dangerous to release.
• Judges will be given performance bonuses every time they throw someone in the slammer. This might encourage some judges to throw the book at people who don’t deserve to go down, but if we want justice for victims of crime we just have to accept the need for occasional multiple injustices.
• The police veto rights proposed under Christie’s Law will be expanded gradually, so that the court system can be gradually phased out. The cost savings will mean we all pay less in taxes!
• We won’t need to build more prisons to accommodate the vastly expanded prison population. They will just have to squeeze more inmates into the existing facilities. If this means prisoners end up sleeping five to a cell then it serves them right. Maybe if they hadn’t been caught joining a union, reading the Koran or walking on my front lawn they wouldn’t be locked up in the first place.

I expect my proposals will lead to an outcry by lawyers and do-gooder groups, which is ironic considering that under Frank’s Law inmates will have around-the-clock access to legal representation. Because under Frank’s Law lawyers and their clients will be sharing cells.

On The Urewera Trial

A public service announcement to fellow bloggers

There's a lot of chatter on the interwebs about the "Urewera Four" case.

Some of it is fine, but some of it is potentially putting the writers at risk.

The sub judice rule prohibits media from discussing anything other than the facts of a case once someone has been charged. There are some thresholds that have to be met before a blogger will get him/herself in trouble, but if a blogger with a wide audience begins commenting on the evidence of a case they may get themselves into bother.

I will not be commenting on the case. I would recommend other bloggers show suitable restraint if they wish to avoid legal complications.

Ve Are Under Attack! Release Ze Killer Robot Army!

If this Herald on Sunday report is to be believed, officers involved in the raid on the house of overweight internet geek Kim Dotcom behaved as if they were auditioning for roles in a Hollywood action film.

An alternative explanation is that they were expecting to have to confront a team of trained killer-jihad-suicide-ninjas, and decided to take no chances.

Another possibility is that they got so aroused while playing with their toys (helicopters! guns!) that they forgot to behave the way we expect our law enforcement officials to behave: with restraint, humility and commonsense, and in a manner commensurate with the presumption of innocence.

A Menace To Society?

The rule of law is under attack again, and nobody seems to care.

Sometimes it's hard to believe Judith Collins is a lawyer. It's even more astonishing that she was once vice-president of the Law Society.

I haven't seen full details of National's new law and order policy, but it appears that the Parole Board will be given the power to order the further detention of people beyond the term of their sentence, if they are deemed a danger to society.

Collins is trumpeting this as a get-tough measure to protect the community.

In effect National has decided that a group of people who have already been convicted and sentenced will now have their sentences extended. They will not be detained for longer because of any new crimes they have committed since first being sentenced, but because they might commit further crimes in the future.

Locking people up past the end of their sentence is the sort of thing despotic regimes do. It is an affront to the rule of law and yet another erosion of our civil liberties. Once again this government is showing its authoritarian tendencies, and like all authoritarian regimes it is justifying its behaviour by claiming the public are in danger.

But if the public are in danger it is this Government that threatens them. No government is perfect, but I am struggling to recall a past government as contemptuous of proper democratic and judicial processes as National is.

John Armstrong's "Constitutional Niceties"

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment. [emphases added]

Entick v Carrington [1765] EWHC KB J98

(hat tip John Edwards)

Update: Dean Knight has more on this.

Police Welcome Opportunity To Watch You Doing A Poo

Police Association President Greg O’Connor has welcomed news that the Government will seek a law change to allow police to spy on you when you are in the toilet.

Police say that have been concerned for some time that when you go to the toilet you shut the door.

“What are you hiding in there?” Mr O’Connor asked you.

"You really have nothing to fear, unless you are hiding something. Are you committing crimes in that cubicle?”

Mr O’Connor has rejected claims by civil liberties groups that having cameras and listening devices watching you defecate will be a gross breach of your privacy.

“The fact that you wipe your bottom with your left hand rather than your right is of no interest to us, unless of course your right hand is holding a phone and you are talking to your dealer or your terror cell leader,” said Mr O'Connor.

Police have also welcomed news that they will now be able to watch your bedroom sexual activities.

Mr O’Connor said there were a number of reasons why police might want to monitor your pitiful efforts to give pleasure to your partner.

“The Crimes Act sets out a whole range of sexual offences,” said Mr O’Connor. “Monitoring and surveillance will ensure that if you cross the line into illegal behaviour, your victim will have redress.

"We will have the footage we need to convict you, and you won’t be able to use legal technicalities to argue the whole thing was an egregious breach of your privacy."

Attorney General Chris Finlayson told reporters that the law change was essential to ensure police could covertly watch you pleasuring yourself in the shower.

“As disgusting as your behaviour might be to right-thinking people, there's an important principle at stake. If police cannot see who or what you are stimulating then they cannot protect the public against you."

United Future leader Peter Dunne confirmed he would support the legislation.

"I don't see the problem with police being able to go into your house when you are asleep, make themselves at home, turn the telly on and set up recording equipment in every corner of your house.

"And if a commonsense reasonable person like me can't see the problem, what is yours? What are you hiding?"

You were contacted for comment, but were unavailable at the time this was posted.

Law And Order Trumps Civil Rights Again

Claire Trevett of the Herald reports:

Government will pass temporary legislation suspending the effect of a Supreme Court decision which ruled covert camera surveillance by police unlawful.

The bill will pass next week under urgency, Prime Minister John Key said.

A permanent fix would be included as part of the search and surveillance bill due to pass after the election.

Mr Key said speed was essential because the ruling in the Ureweras case would have jeopardised police investigations.

He said the Crown Law Office advised Cabinet it meant almost all use of covert video surveillance was unlawful.

"This has significant implications for law and order in New Zealand."

The problem has arisen because, as Chief Justice Elias said in the Supreme Court judgment:

Parliament has not however provided legislative authority for covert filmed surveillance, despite recommendations that it should do so. The courts cannot remedy the deficiency through approval of police action taken in the absence of lawful authority without destruction of important values in the legal system, to the detriment of the freedoms guaranteed to all.

In most functioning democratic societies citizens are protected against breaches of privacy by agencies of the state. Such is still the case in New Zealand, although that is about to change. I haven't seen the proposed legislative "fix", but it sounds as if from next week onwards police will be able to spy on anyone they please. Greg O'Connor must be thrilled. 

It is typical of the law and order obsession of recent governments that the need to catch criminals trumps basic civil liberties every time. But why should this be so? Most of us probably don't want to live in a society where agencies of the state are free to spy on citizens. I wonder what other civil liberties we might be prepared to give away if it means nailing the bad guys.

I remain unconvinced that this action is necessary or warranted. For one thing, illegally obtained evidence is not automatically inadmissible. Instead it must be assessed in accordance with section 30 of the Evidence Act 2006. In the case of the Urewera 18, the Supreme Court ruled that the charges faced by some of the accused were serious enough to allow the use of illegally-obtained evidence. So unless all of these trials Crown Law are worried about are for minor matters, it seems likely that for a good many of them the illegally-obtained evidence will still be admissible. Perhaps they are just trying to prevent defendants arguing that civil liberties have been trampled on. Which they have.

While they are at it, why don't they just repeal the Bill of Rights Act? Imagine the cost saving to the taxpayer.

New search and surveillance laws are in the pipeline, and when they eventually pass these will give the police powers to undertake video surveillance. I remain hopeful that such legislation will be properly debated and will contain sensible provisions, and that surveillance will be properly regulated and subject to appropriate judicial supervision. But then I'm just an insufferable liberal.

This Embarrassment Still Belongs To The Police

The police decision to drop charges against 13 members of the "Urewera 18" has incited predictable outrage from police and law and order hawks.

The firearms charges against the 13 were dropped because the police case collapsed, after the Supreme Court ruled that police footage taken illegally on Tuhoe land was inadmissible.

The Crown case relied heavily on this footage.

Stephen Franks is depressed by the way our courts have dealt with the "terror charges", even though terrorism charges were never laid (Police were refused permission to lay terrorism charges by the Solicitor-General).

And John Pagani appears to be happy to compare the Urewera 18 case with the case of the Norwegian mass murder Anders Breivik. Despite his not having a clue what is on the video footage. Even if the evidence were admissible, that wouldn't in itself make it compelling.

Section 30 of the Evidence Act allows illegally obtained evidence to be used in some cases where the alleged offences are serious. This is why the evidence cannot be used in relation to the firearms charges, but can be used against the remaining four defendants, who are facing more serious charges.

It is no surprise that the moment the judgment was released the police sought to attack the decision, claiming that it will impact on their ability to do their job. But it is hard to see how that could be so. The Evidence Act requires judges to make a call as to what extent an exclusion of the evidence would be proportionate to its impropriety. It does not automatically rule out improperly obtained evidence.

It doesn't seem all that controversial to think that illegally obtained evidence should not be used if the charges the evidence is to be used for are not serious ones. If police could use illegally-obtained evidence in all situations, then that would simply encourage them to break the law.

Police Association spokesperson Greg O'Connor is welcoming the release of the ruling because "Those who were quick to leap to the conclusion that police had no evidence justifying arrests should now be embarrassed."

But I beg to differ. Illegally obtained evidence that is entirely inadmissible is no evidence at all. How do we even know what was on the video footage?

If police had actual evidence of serious wrongdoing against the 13, why weren't they charged with more serious offences?

It is the police who ought to be embarrassed.

Time To Get Tough On Natural Disasters

Sensible Sentencing Trust spokesperson Garth McVicar has accused the Government of being soft on crime, after a third major earthquake rocked the Canterbury region this week.

Monday’s two quakes inflicted further damage upon a region struggling to recover from the events of September and February, and caused further distress to people already seriously traumatised.

Mr McVicar said that the people behind the three major earthquakes had caused untold misery and suffering.

“Whoever is doing this has to be stopped, for the good of our people. How can our politicians just stand by doing nothing while our second largest city slowly dies? Do the tears in the eyes of the children of Christchurch mean nothing to these people?

“It’s time we got tough on natural disasters. Let’s send a message to the people behind earthquakes, volcanic eruptions, cyclones and other callous natural disasters, that their violence won’t be tolerated anymore.”

However, Auckland University Law Professor Jill Tamarillo cautioned against any sudden law change, saying that evidential issues would make any prosecution for committing a natural disaster problematic, even if laws were passed to prohibit earthquakes.

“In many cases it won’t be clear who’s responsible for an earthquake,” said Professor Tamarillo.

“We often call these events ‘acts of God’, but which god? The prosecution will have an almost impossible task trying to prove that a particular disaster was committed by say Jehovah rather than Allah.”

Professor Tamarillo also questioned the deterrent effect of any sentence imposed on a natural disaster offender.

“How does one punish God effectively? Our prisons just aren’t suited to housing deities. We also know that for many criminals prison is little more than a finishing school, and that when they finish their sentence they are even more dangerous.”

But Garth McVicar has slammed critics of the Sensible Sentencing Trust’s call for “get-tough” policies.

“We’re been told for years by these liberal pointy-headed ivory tower types that it can’t be done and that it shouldn’t be done, and the end result is a society where people live in constant terror of natural disasters attacking them in the dead of night.

“You ask anyone in Christchurch right now what they think about the wave of natural disasters hitting them, and they’ll tell you that they’re sick of it.

“If politicians, academics and liberal do-gooders would just get off their high horses and meet some of the victims of these crimes, they’d see for themselves how much our current legal system panders to criminals and how utterly broken it is.”

Mr McVicar also said that further earthquakes could have been prevented had the Government adopted a zero-tolerance policy towards natural disasters several years ago.

“A broken-windows intervention strategy could have saved a lot of lives. But more importantly, if a magnitude six or greater earthquake had been included as a ‘strike’ offence when the three-strikes legislation was passed in 2010, we could right now be throwing the book at these criminal scumbags.”

Giving Boot Camps The Boot

TVNZ reports:

Critics say new figures on bootcamps for young offenders show they don't work.

A trial of military style camps shows the number of young people who reoffend once they leave the programme is growing.

The Military Activity Camps were launched by the Government last October, with 17 young people going through the military activity camp. Ten have now reoffended.

Admittedly, this is a pretty small sample. But the evidence that boot camps work just doesn’t exist.

For many people on the right, social problems like crime and juvenile delinquency are all down to the failure of the individual. The notion that all troubled kids need is a bit of discipline, a “boot up the bum”, may be attractive to many, but it lacks any evidential foundation. By the time many kids end up as troubled teenagers or young adults, they have already been exposed to years of abuse or neglect. Sending them on a discipline course for a couple of months won’t help many of them, and most of them will probably just go back to their previous ways.

The better approach is to intervene before kids end up before the courts. The most important period in a child’s development is the first five years of their life. After that period it becomes harder to change behaviour, because much of it has become “hardwired”. A good early childhood education system is critical to helping kids to develop the right behaviours.

And yet the Government continues to put barriers in the way of early childhood education, and has cut funding to the sector. The focus on military-style discipline for young adults and teenagers is a waste of money,and the money would be better spent on the under-5s.

None of this will make any difference to the government, who will no doubt continue at full speed with the boot camp programme. The ideology of the right demands self-responsibility. If the evidence shows that boot camps don’t work then, well, the evidence must be wrong. The ideology demands that everything be black and white, and that complex social problems have simple solutions. Whenever the simple solution doesn’t work the explanation is that the individual concerned just hasn’t had a big enough boot up the bum. This lunacy underpins our entire corrections policy, which is why we have such a large prison population.

Evidence is for pointy-headed academics and pantywaists. Ideology trumps evidence every time.

Denied Justice?

The Herald reports that the "Urewera 18" are to be denied the right to a trial by jury (actually this was kind of big news last year, or should have been, but the media largely ignored the story).

The Court of Appeal yesterday upheld the decision of the High Court in December ruling that the trials would take place in front of a judge only.

In a bizarre twist, a suppression order exists, so that reasons for the decision cannot be given.

To be tried before one's peers is a right that should be taken away from a defendant facing serious charges in only the rarest of cases. It seems almost abhorrent to justice that we aren't even allowed to know the reason why this time.

Outrageous!

The NZ Herald appears to be insinuating that lawyers should not be entitled to receive preferential treatment when it comes to our drink driving laws.

I am outraged. Outraged!

I don't like what the paper's trying to suggest. Lawyers are central to the development and drafting of law. So it makes perfect sense for us to be above it.

I say boycott the Herald. Are you with me? Anyone? Come back!

Criminal Procedure Bill Picks Away At Rights Of Accused

Members of the judiciary have attacked some of the provisions of the Criminal Procedure (Reform and Modernisation) Bill, which is currently before the Justice and Electoral Select Committee.

The bill is huge and introduces a large number of changes to criminal procedure. Many of them are entirely sensible and will be welcomed by the legal profession.

But other changes are more controversial. One provision that has the judiciary up in arms is the requirement on the defence to indicate at an early state which elements of an offence are accepted, which are denied, and what defences will be raised. If the defence fails to do so the judge or jury are allowed to use the accused's silence as evidence inferring guilt. It's a partial abolition of the accused's right to silence.

The Chief Justice has also attacked the speed with which this law reform has been pushed through. On law and order issues this has been a pattern for the National government. The three-strikes legislation is a good example of bad law pushed through quickly.

The bill also abolishes the right of a defendant to seek a jury trial for offences where the maximum punishment is less than three years' imprisonment. The current threshold in most cases is three months. This is another erosion of the right of defendants. I'm not sure what the practical effect of this measure will be, and whether it will lead to a greater number of convictions. I suspect the main motivation for this measure is an attempt to cut costs.

But the most controversial measures are consistent with the approach successive governments have taken on law and order issues: picking away slowly at the rights of the accused, in favour of "get tough" policies and "streamlining" the system.

At the same time the ongoing assault on the legal aid system is also diminishing the ability of accused people to get proper representation.

Someone who knows a lot more about the bill than me is Graeme Edgeler, and he has a good summary of it here.

Sick

Jared Savage of the Herald reports:

One of the men charged with looting after the earthquake is autistic and has a mental disability that compels him to steal light fittings.

Arie Smith, 25, became a figure of hate when he was named and shamed after appearing in a makeshift district court charged with theft. He was photographed with a black eye.

He was denied bail by the judge to send a strong message to Christchurch looters, and was remanded in custody until his next appearance.

Mr Smith’s sister has told the Herald that Smith has Aspergers syndrome, and that it makes him “collect” light fittings.

There has a been a lot of hatred expressed towards those caught by police in Christchurch, particularly on sites like Kiwiblog, with many commenters virtually begging police to brutalise alleged offenders. A particularly prevalent fantasy being relayed by these (almost always) men is that people arrested for crimes in Christchurch ought to be beaten up or thrown down a flight of stairs. And, no, I won’t link to the offending comments, because they’re just icky, and there are too many in any case.

But a lot of people who commit crimes are victims themselves, as the case of Mr Smith appears to show.

It is probably too much to hope that the people who are calling for burglars and looters in Christchurch to be shot on site will reflect on what they are saying. But they should.

Giving Boot Camps The Boot

So it turns out that boot camps don't really work that well.

The Nats like the idea of putting kids in uniform and having people yell at them. Give 'em a kick up the bum and a bit of discipline, eh?

The Right wants boot camps to work, because if they do that would prove that people who commit crimes are not themselves victims of circumstances, but are instead personally weak. It would only be a short jump to concluding that people on welfare, or with addiction problems, just need to get off their arses.

If that were true we could slash spending on social programmes, rehabilitation and welfare, and everyone (well not everyone, obviously - just those who earn more) could pay less tax. And we'd be doing these miserable people a favour, right? Cruel to be kind, tough love, etc.

But boot camps don't seem to work for most kids.

Why would yanking someone out of a problem environment, yelling at them for a few weeks, then throwing them back where they came from, work? Okay, so boot camps are a bit more sophisticated than that, but you can't impose structure and discipline on a disordered and troubled person in a few weeks. Many kids from broken homes, where most of the boot camp candidates come from, are struggling to deal with enormous psychological problems, or have been abused.

When National's plan for boot camps was announced the experts said they wouldn't work.

They are not working. Which means that we can expect the usual response to a law and order measure that isn't working: it will work. Just give us more time. We need more camps. Repeat cycle until message thoroughly absorbed.

Is Garth McVicar Losing It?

Garth McVicar, the head of the Sensible Sentencing Trust, is looking increasingly desperate and marginalised.

Having already been humiliated for vouching for disgraced former MP David Garrett, McVicar has now taken a pop at the Police Commissioner. This has drawn the return fire of Labour.

John Hartevelt of Stuff reports:

A bitter spat has broken out after Sensible Sentencing Trust spokesman Garth McVicar called for the head of Police Commissioner Howard Broad.

Labour MP Clayton Cosgrove this morning condemned McVicar for what he said amounted to a ''crass and insensitive attack'' on Broad.

Cosgrove said McVicar's attack, which was over comments about rethinking who is sent to prison, were unbelievable given what police were going through following the tragedy at the Pike River coal mine.

McVicar yesterday said Broad should resign immediately over his comments to MPs at parliament on Wednesday. At a select committee hearing, Broad indicated police were trying to prevent crime rather than focus solely on prosecuting.

It's nice to see Labour finally standing up to McVicar. His influence on the criminal justice system has done nothing to reduce crime. The violent crime stats continue to be negative. His supporters demand retribution and punishment over rehabilitation and prevention, but we've been punishing for years and it doesn't seem to be working. We know that a stint in jail doesn't make most people better citizens. In fact, many come out much more hardened criminals than when they went inside.

The police are at the very front end of dealing with crime. If they are now saying it is time to focus on prevention, why shouldn't we listen? And why exactly is crime prevention such an evil? Does McVicar actually want crimes to be committed? Perhaps McVicar fears irrelevance. Imagine if the police practised prevention and it actually worked. Who would we talk about hanging then?

The sooner McVicar's pernicious influence over law and order matters disappears the better.