Monday, November 15, 2010

Against justice "reform"

This afternoon the government announced its plans to "reform" (in the 80's sense) the justice system. Ostensibly, this is aimed at making trials more efficient. In practice, it means a serious assault on the human rights of people accused of a crime.

The two most serious changes are a move to restrict the right to trial by jury and a requirement that the defence identify "issues in dispute". I've dealt with the former here, and I have not changed my mind on it. Anyone who thinks that three years' imprisonment is a "minor" penalty is smoking crack. Anyone who advocates that the right to trial by jury be restricted is clearly incapable of imagining that they might one day end up on the wrong side of a courtroom. And while the government can claim that

A fair trial is just as likely to occur before a judge alone as before a jury.
The fundamental problem is that people will not believe it. And that's obvious the moment you think about what happens on a jury. For a miscarriage of justice to occur in a jury trial, 12 (well, 11 with a majority verdict) people would have to be completely wrong. For it to occur in a non-jury trial, it needs only one: the judge. And if I'm ever in a courtroom, that's why I'll be wanting a jury: because it means there are that many more eyes on the case, looking for the holes. Juries are the ultimate bullshit detectors, and the ultimate check on state power, as the Waihopai Three's acquittal showed. And that is why the government wants to get rid of them.

The requirement that the defence identify issues in dispute OTOH is a gross violation of the right to silence. It forces the defence to effectively give evidence against themselves, in that areas not disputed are effectively admitted. It is also a recipe for lazy prosecution and potentially unsafe verdicts. Remember, in this country the prosecution has to prove every element of a crime beyond a reasonable doubt. Focusing only on "issues in dispute" will inevitably mean the crown fails to do that.

The Bill of Rights Act is very clear: no-one shall be compelled to be a witness or to confess guilt. That's exactly what Simon Power is proposing they be forced to do. It will be more "efficient" of course. So would forgoing trials entirely and assigning verdicts at random. But the court process is not supposed to be about efficiency and saving money - it is supposed to be about justice. And what we are seeing here is an erosion of justice so that National can give away more tax cuts to its rich mates.

But then, this is a party who can't even design a liquor control bill without turning us into a police state. So I guess we shouldn't really expect anything better from them.