Tuesday, March 15, 2011

The Non-Story Story

Or, "the one that got away". As the media were working themselves into a frenzy over prisoners votes and the sex offender register, another European Court ruling slid largely past the popular gaze.
It slid past mine anyway. Such is the paucity of information that I have access to that I was lucky to catch it in a week-old copy of the Sunday Times.
It seems that the ECHR has a fairly robust view of the components that comprise a "fair trial". The new ruling stresses that an accused must be able to challenge their accuser, and that convicting people using unchallengeable written statements is improper such methods render a fair trial impossible.
That we got into this situation is a direct result of the campaigning by victim's groups and a supine populist government. Victims object to being put through the wringer as they point the finger across the courtroom, they find it distressing to be challenged and questioned by the accused or the defence lawyers. In order to save them this temporary discomfort, the law was changed to place as much distance as possible between accusers and defendants. Part of this was the use of written statements rather than real, live testimony.

I have every sympathy with accusers who find the legal process an onerous one. However, throwing a person into prison and destroying his life is a very serious thing to do, and anyone prepared to make an accusation should have their character and evidence tested in court. That sounds eminently fair, does it not?
A couple of judges, including the Lord Chief Justice, have deplored this ECHR judgement on the basis that some guilty people may go free because of it. I don't doubt it. But that is the price society must pay for Justice, for fair trials - and to ensure that innocent people are not improperly convicted.
It has been a very long time since I heard the quote "better that ten guilty men go free than one innocent man be convicted". And that's because we have lost sight of the point of Justice, allowing our view to become obscured by natural sympathy of victims and the machinations of their campaigning.
But Justice isn't about victims. It is about punishing the guilty and liberating the innocent. How were we so easily persuaded to forget that?


  1. "Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against. We're after power and we mean it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with." [Ayn Rand: Atlas Shrugged. 1957]

  2. Totally agree with you Ben, due to the inflammatory headlines of the press, and the willingness of the population to be blinkered when it comes to "criminals" the subject of punishment has become confused with revenge. I of course sympathise with victims and their families, but a 'fair' trial should be put before an individual's emotions.

  3. Totally agree with you Ben,

    Sad that in the 21st Century, most people still buy into the misconception that "Justice" has anything to do with revenge. By allowing emotion to rule in the courtroom how can we be a "Just" Society?

  4. Unfortunately at the moment we are reaching a point where the legislature is trying to bully judges into deciding things a certain way. Sooner or later its going to start entering judges mind that upholding human rights for unpopular people will cause politicians to attack them, which is not a consideration that they should have forced upon them.


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