Monday, May 19, 2003

Putting money ahead of justice

According to a press release this morning, ACT wants judges to be able to hand out stiffer sentences to offenders who appeal and lose. Stephen Franks thinks that this will "send a clear message that unmeritorious appeals are not costless", and therefore deter convicted criminals from lodging them. Unfortunately, it will also deter them from lodging appeals with merit as well.

In ACT's books there's probably no such thing as a meritorious appeal from a convicted criminal. In this, they're denying both the evidence that our justice system does make mistakes, and the very principles it is founded on. There have been many cases over the years of convictions and sentences which have been downgraded because the courts or the police made an error - and several very high profile cases of innocent people being convicted and freed (sometimes years afterwards) on appeal. It's the latter which poses the most obvious problem, because a central tenet of our justice system is that it is better that ten guilty people go free than see an innocent person convicted. In practical terms, this not only means procedural safeguards and all that "beyond reasonable doubt" stuff we see on TV, but also making appeals accessible so that any mistakes can be corrected as swiftly as possible. Making appeals less accessible, e.g. by threatening appellants with tougher sentences if they lose, will result in more gross miscarraiges of justice. It's as simple as that.

On a more prosaic level, the same argument applies to those facing "ordinary" errors. It's an injustice to imprison an innocent man, and it's also an injustice for a burglar to serve six months more than they should. Both deserve to have the error corrected, and in an adversarial system this means appeals.

I've seen ACT arguing that unmeritorious appeals cost the justice system millions of dollars a year, and tie up valuable court time which could be spent on other things. But the fact is that justice costs, and if we skimp on the money, then we skimp on the justice too. Stephen Franks may find that acceptable, but I don't.