Tuesday, May 27, 2008

Justice and the right to silence

David Slack this morning has some pointed words for the Prime Minister in response to her comments on the Kahui acquittal. The short version? "Butt out". Politicians criticising judicial outcomes violates important principles such as the separation of powers and the independence of the judiciary and police. While people are angry that a crime has been committed but no-one has been held accountable for it, at the end of the day the basic problem is that the police didn't deliver the goods. While they had a prima facie case, they were unable to convince a jury beyond a reasonable doubt. It is thus entirely proper that Kahui goes free.

As with the police rape case, such acquittals are the price we pay for justice. "Better that ten guilty men go free than an innocent be unjustly imprisoned". Any lesser standard of evidence would undermine the integrity of our justice system, and transform it from a justice system into a punishment one - a sort of organised lynchmob picking out anyone who looked vaguely guilty and victimising them whether they'd actually committed the crime in question or not. That might satisfy the "hang 'em high" brigade, who are perpetually unable to look beyond their own sense of outrage, but it does not satisfy me. We have more than enough innocent people in jail already, and the cases of David Dougherty, Arthur Allan Thomas and Peter Ellis ought to give us grave thoughts about the direction the screaming mob want to take our legal system in.

As for the calls to remove the right to silence, as I have said before, these are both dangerous and authoritarian. The right to silence exists to ensure confessions are voluntary rather than being beaten out of people, and because in our justice system it is the crown, not the defendant, which must prove their case. Yes, removing it would likely result in a lot more "confessions" and convictions. They just wouldn't be of the right people. But the boys in blue wouldn't have to work so hard, and would have more time to spend down at the donut shop, so it's unsurprising they favour such a move.

Which brings me back to the real problem here: as I said above, the basic reason this case failed was because at the end of the day, the police failed to present sufficient evidence to convince a jury beyond a reasonable doubt (in fact, given how short it took them to deliver their verdict, I'd suggest the evidence was woefully inadequate). Maybe we should think about how that happened, rather than queuing up to undermine our justice system and give those same police free licence to string up anyone they want in future?