On Blair’s "rebalancing" of the justice system

From “Just Law”, by Baroness Helena Kennedy QC, Chapter 1, page 26
(hardback edition, ISBN: 0-701-17506-0)
:

“In the criminal courts the victim is a witness, a crucial and central witness for the state. So, when the government talks about rebalancing the system, it is really about rebalancing in favour of the state.That is the fraud in the government’s rhetoric, the sleight of hand.”

Kennedy puts this point quite well, but I have a problem with the language.

It is the accuser who is the witness for the state.

Who the victim(s) is(are) depends on whether the defendant is innocent of the crime he’s charged with and on whether the accuser has had a crime committed against them. These are questions for the court to decide.

It may well be that the defendant is the victim, e.g. of a false accusation.

It may even be that both the accuser and the defendant are victims, with the accuser misled as to who the perpetrator is and the defendant the unfortunate scapegoat or victim of mistaken identity.

Or it may be that the accuser is indeed a victim of a crime committed by the defendant.

But the language of the government’s rhetoric, and much of the debate over these issues, implicitly assumes that the accuser is the victim.

Yet surely part of the purpose of the trial is to determine whether or not the accuser has in fact had a crime committed against them? And thus whether or not the accuser really is a victim?

And when Tony Blair says, e.g. “It is perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished”(1), it is simply wrong.

Logically speaking you have 4 possible miscarriages of justice:

  1. The accused is punished for a crime someone else commited.
  2. The accused is punished for a crime he didn’t commit and no one else committed.
  3. The accused is punished for something he did do, but which wasn’t a crime.
  4. The accused walks free from a crime they committed.

It is arguable that cases 2 and 3 are as serious as 1 — assuming like crimes — because in each of these three cases, 1 party is punished or not incorrectly.

However (1) is clearly more serious than (4) because 2 parties are punished (or not) incorrectly — the accused and the actual perpetrator(s). To make matters worse, the actual perpetrators also remain free to commit further crime.

Moreover since it is the state that brings a prosecution, there is an inequality of arms which safeguards like the presumption of innocence, the right to a jury trial and the right to silence seek to redress.

Weakening or jettisoning those safeguards thus makes it easier for the state to lock anyone they choose up and thus increases the risks to us all from the state.

This is where those who criticise civil libertarians for preferring the rights of criminals over victims get it so wrong with regards to those who try to uphold the accused’s rights.

When the rights of the accused are weakened, this is an attack on the rights of all, because anyone could be accused of a crime and these rights are there to try and ensure that only a sound accusation will result in loss of liberty.

Defending the rights of the accused is not the same as defending the rights of criminals.

Convicting the accused is not the same as convicting the guilty.

Making it easier to convict the accused by lowering the burden of proof, or standards of evidence, will simply make the system less reliable, thus increasing both the incidence of innocent people being punished and the incidence of the guilty walking free.

It will also lead to less trust in the system (though I grant trust in the system has already been compromised in Britain).

The only sound way to ensure the guilty are convicted and the innocent are either not put on trial, or are acquitted if they are, is to ensure a sound and thorough investigation of crime, and to ensure that each case is thoroughly tested in court.

Principles such as presuming innocence, having to prove guilt beyond reasonable doubt and allowing a trial of someone by a jury of their peers should not have been jettisoned as they are there precisely to ensure such thorough investigation and testing of cases.

Of course the criminal justice system was not perfect when these principles applied. There may well have been a need to provide better protection for witnesses for example, but this was not an excuse for abandoning sound principles that had been tried and tested for hundreds of years.

Footnote

(1) Kennedy attributes this quote to Tony Blair for the 18th June 2002, but does not give a proper source. Indeed, one problem I have with the book is the poor citation of sources. A bit of googling got me this article however:

http://www.number-10.gov.uk/output/Page1717.asp

Near the bottom it says:

“And it’s perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished.”

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