Thursday, March 17, 2011

The judiciary on justice reform

The government's Criminal Procedure (Reform and Modernisation) Bill is currently before select committee. The bill would eliminate jury trials in most cases, while also eroding the right to silence by forcing defendants to effectively admit to elements of the case against them. While undoubtedly efficient, this is fundamentally unjust. But don't just take it from me - here's what the Chief Justice (on behalf of the Supreme Court, High Court, and Court of Appeal) had to say [PDF]:

The second matter concerns the requirement for notification of issues in dispute in advance of trial and also at the commencement of trial, together with related provisions providing for sanctions in the event of non−compliance both at sentence and by way of costs orders against defendants and their counsel. I have previously recorded my grave concern that these provisions are contrary to longstanding principle, being inconsistent with a defendant's right to have the prosecution prove its case beyond reasonable doubt, not being obliged to assist the prosecution by volunteering information. I appreciate that some defendants and counsel are guilty of abusing the system but, on balance, the judiciary is not persuaded that this provides good reason for the departure from basic principle which is involved in any requirement for advance disclosure of an intended defence.
And its not just them. The District Court [PDF] calls the idea of inferring guilt based on procedural failure to notify "conceptually incoherent, and therefore arbitrary". And they've basically put the government on notice that due to the likelihood that such procedural defect is the fault of the lawyer rather than the defendant, they are highly unlikely to infer guilt in such a fashion. The net result: the idea isn't just unjust, but it will also be ineffective.

[Graeme Edgeler has more on this at Public Address]