20 July 2010
Claims of right
Our civil laws are a systematisation of innate human ideas of "right" and "wrong". They developed first as customary law, were later codified as religious law and, finally emerged in the form of law enacted by a secular authority, or legislature. The enactment of law by a legislature is the principal business of politics, and much political debate revolves around proposed changes to the law. Some of those proposed changes appear at best unnecessary, and at worst contrary to the interests of the rule of law. They could be perceived as change for its own sake, but all too often they are changes for the sake of the politicians. Politicians can attract popular support by advocating law changes which they claim will benefit society in some way or another. Even though the link between the proposed change and anticipated effects may be tenuous, a body of support may be gathered for virtually any new enactment or amendment which will placate the public demons. In theory, the politicians are elected to the legislature for the purpose of making good, sound and enduring law. In practice, laws may be changed on a whim for the purpose of furthering political careers.
The Key government is proposing two law changes which are unnecessary and will be contrary to the broader interests of justice. One would remove the defence of provocation. The other would remove the "claim of right". There will be some public disquiet about both these changes, but not a lot, because, on the back of recent court cases, the regime's mass media organisations have engaged in a concerted campaign against both legal defences.
Removal of the legal defences of provocation and claim of right would prevent judges or juries from acquitting on those grounds. The key to these defences is that they involve matters of judgement, rather than objectively determinable fact. Judges and juries must decide whether the claim to have acted under provocation, or with claim of right, was reasonable and credible in all the circumstances. Curiously, the proponents of change are not putting up any serious case to explicitly suggest that either judges or juries have been making unsound judgements. The defence of provocation has been rejected by juries in two recent high profile cases involving defence counsel Judith Ablett-Kerr. The only problem that the regime can point to in respect of the use of the defence of provocation is that it has been offensive to the families of victims. That is no insignificant consideration but it must be placed in perspective. The decision of the court will have sufficiently exonerated the innocent victims. The convicted murderers would have been subject to more severe penalties than if they had shown remorse for their actions, Ms Ablett-Kerr's credibility as a lawyer for the defence would have suffered from the failed defence, and other defence lawyers will hesitate to use the defence inappropriately in future. In short, misuse of the defence of provocation is a problem that would solve itself, without any need for a change in the law.
On the other hand there are situations where even the best of us may be forced to admit that "If provoked as he or she was provoked, then I also might have killed or injured". Taking away the defence of provocation means that a jury will be forced to convict of murder where it believes that only manslaughter was committed, or, alternatively, to acquit altogether, and in disregard of the law, where it believes that manslaughter was committed but that conviction for murder would be unjust. Neither outcome would be in the interests of justice. Judges and juries are capable of making good or bad judgements, but the evidence from these few cases is that they have made sound, sensible and generally well-received judgements.
A general distrust of human judgement should never become a pretext for attempting to do the impossible by dispensing with judgement altogether. Through centuries of civil society lawmakers have been there to make law, and judges have been there to judge according to law. There has been a division of powers, there have been processes of qualification, and there have been systems of accountability. Now all that is under threat from a "fourth estate" which is unqualified and unaccountable, but which plays a decisive role in the legislative process and continually assumes the right of judgement in matters trivial or profound.
The Waihopai "claim of right" case is more complicated than the "claim of provocation" cases already mentioned, because a jury accepted the defendant's plea, which has incensed the political and propaganda organs of the regime, who have sought to portray the jury's decision as unreasonable. I would argue that not only was the jury's decision legally valid, but that it was in fact a sound and common sense judgement on the facts of the case, and that it would actually be in the regime's longterm interests to embrace the verdict. The jury must have sensed that the regime's involvement in the Iraq and Afghan wars is at best foolish, and at worst immoral. They accepted that the defendants believed themselves justified in taking steps to counteract the decision of the regime to involve itself in those wars. The jury's decision was therefore entirely reasonable. The regime should listen. It should withdraw its support for the war. It may in fact be doing that as we speak. In which case it should be congratulating the jury, and thanking God for the centuries of legal wisdom which saw the "claim of right" incorporated into English law. Instead it seems hell bent on removing a provision which has always served as a necessary check upon abuses of executive power and in defence of the God-fearing populace.
The "provocation" and "claim of right" controversies are part of an even wider trend within the regime as it seeks to limit accountability in some areas of society, to impose ever greater restrictions in others, and to reduce the role of the judicial system as arbiter and judge. Proposed changes to employment law remove a crucial area of employment relations from the jurisdiction of the courts, and make employers unaccountable for their actions. There is, therefore, an implied lack of confidence in the ability of the judiciary to make sound judgements and to exercise sensible discretion, or alternatively, an implied lack of confidence in the ability of employers to take note of judicial decisions, and to conduct themselves accordingly. If the latter is true, it provides an even stronger reason for retaining judicial oversight of employment relations.
There is a good deal of common sense to be found in the common law, and a deal of sound judgement to be acquired from judges. The "sensible sentencing" lobby, the "three strikes and you are out" policy, "minimum terms of imprisonment" for specified crimes and so on are all evidence of an unwarranted disdain for the exercise of judgement felt by people who may themselves be deficient in that faculty. Removing whole areas of social relations from the judicial oversight or control is a mistake which will surely have unintended consequences. Society must allow suitably qualified, experienced, capable and accountable individuals to make complex judgements on matters of right and wrong and crime and punishment, whether we are talking about the actions of individuals, institutions or communities.
It is a typically modern mistake to see legal "rights" and defences
as being there for the protection of individuals or specific interest groups,
and therefore dispensable. These rules are in place because
they have been found to be necessary for the stability and good governance
of society as a whole. The regime will remove them at its peril.
Juries will refuse to convict if they believe that there would be unfair
or unjust consequences. Political activists, parents
and workers whose legal rights are curtailed may lie low for a while,
but they will eventually assert their interests and their principles in
ways which the regime will find rather more difficult to manage or control.
The ultimate result will be a diminution of respect for the rule of law.