10 October 2009

When Chris Trotter is partly right

From Bowalley Road:

"As New Zealand’s leading conservative party, founded in 1936 to restrain state power and protect the rights of the individual citizen, National should be the most avid defender of the ancient rights and privileges of the people. Sadly, on matters of law and order, National long ago surrendered to the irrational populism of the Mob."

He's not entirely correct, some of the "irrational populism" is a genuine sense of frustration at how repeat offenders get the opportunity to create new victims, but he's right. National shows precious little interest in restraining state power.

I don't share Trotter's view that "a huge number of otherwise sensible and compassionate people are no longer able to see that, for all but a few moments of life-transformingly bad decision-making, most lawbreakers are indistinguishable from themselves", which minimises when people DO use violence, rape or break and enter a property as being a "bad decision", rather than a violation of the rights of another, but he is indeed right that the presumption of innocence is fundamental.

However, whilst in principle he is right, is he right about the proposals he listed?

- Tougher bail laws when the issue is a person being a likely threat to public safety is not inconsistent with protecting individual rights.
- Abolishing the right to silence is not quite what it seems, it is in fact allowing it to be mentioned in court in evidence that the accused used the right and the Jury can interpret it as they see fit. The state should not force someone to speak. I hope I am correct in the interpretation.
- Cutting back on legal aid is essentially a welfare matter, but in essence nobody should be without defence counsel in court.
- The use of "teleconferencing" should not be ruled out because Trotter is old;
- Finally, the right to a jury trial, which Power intends to restrict only to offences where one faces 3 years in prison or not, IS fundamental. Power also suggests an inquisitorial approach to rape cases. This is a fundamental change to the entire criminal justice system, for one crime. One should tread carefully before considering this.

Jury trials are expensive and slow, but they are critically important. Though to be frank, I doubt I'd choose a jury over a judge if I was accused.

Note Power also talks about a "positive definition" for consent in sexual crime cases. At its extreme this would mean a signed form for sexual encounters to say you consent, which of course wouldn't obviate a last minute "no" for whatever reason. Rape is an inherently difficult crime for the justice system because it involves the greatest physical intimacy combined with violence, and too often includes people who already know each other, and circumstances that allow reasonable doubt to be presented.

However, that is not a reason to destroy that assumption.

So Trotter is somewhat right.

You see Simon Power's biggest error is this claim "The people in our prisons right now are there because they committed crimes against other New Zealanders.". For many he is right, for a few he is dead wrong. Not all crimes in New Zealand have victims. Remove victimless crimes from the books and he would be right.

However he made the point in a wider context in that the high prisoner population "is primarily a symptom of a much more fundamental problem – crime itself."

So the focus COULD be on removing victimless crimes from the books, emptying the prisons of those with such convictions, and focusing on real crimes with real victims.

That WOULD be a reason to celebrate law and order reform.


Adolf Fiinkensein said...

I'd be interested to hear your version of a 'victimless crime' for which anyone currently is incarcerated.

James said...

Before doing so Adolf (by the way...whats you view on Keys statement in the Herald the othber day that he's happy to violate the individual rights of P addicts to ensure they get 'treatment"?....meet the new boss,same as the old one...just wearing blue jackboots.)

...we need to define "victimless".I would define it as an action that does not coercively impact or violate the individual rights of another.LS may well have a better definition but there it is.

The obvious examples are drug use and supply,prostitution(offering and purchasing).These activities are vices....meaning they are possibly self destroying actions undertaken with the actors own property being his/her life and property.Now these actions may "harm" others...eg partners and children who are close to the negative effects of the action but "harm" is subjective and not the prime reason for State intervention....protecting individual rights is....including those of the actor to indulge in vices and make poor choices with whats his.Thats true freedom.

James said...

Here Adolf.....

From "Vices are not Crimes" by Lysander Spooner


.."Vices are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

In vices, the very essence of crime - that is, the design to injure the person or property of another - is wanting.

It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others.

Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property, and the corresponding and coequal rights of another man to the control of his own person and property.

For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, or falsehood truth."

peterquixote said...

about Chris Trotter,
he don't understand nothing since trotsky was assassinated,
now everything is worser in his life because we have a
NZ NAT Govt which is popular with the Emperor of the world, President Obama USA,
it is good you Green get rational, many people praise you,
but you should not have sold your house in Wellington,
keep away fro share market Green, it is not good superannuation for your people,
go back to property at good rental,
but also PM John Key will introduce Capital gains dudes,