I read with horror this article in a local paper. It is at times like this that I envy the citizens of the US where they would have to amend the constitution to pass legislation with such far reaching consequences.
The statements of the Premier are full of arrant nonsense and reflect an abysmal ignorance of the reason that the protection against double jeopardy has survived for 800 years.
Let me look at some of Mr Rann’s statements.
“…the changes reflected advances in DNA technology used to bring so-called cold cases before the courts.” Technology is hardly a new thing. Forensic science is a relatively old discipline. How is DNA different from say fingerprint evidence, or any other advance we have seen in the last 100 years. What makes DNA matching special? Absolutely nothing. The same legal principles apply, the same rules of evidence. Sure we have another string to the bow of forensic science but it has many strings and DNA is but one. We speak as if technology is a new thing, it is hardly new and is no excuse to trample on human rights.
“…the 800-year-old legal principle…” It is 800 years old for good reason. This is somehow turned into a pejorative.
“It is important that the law changes to reflect the changes in technology,” No argument there but this is not a law that relates to technology it is a law that relates to the balancing of the state against the individual in order to bias the judicial system in favour of the weaker party. Tis was the reason for the principle and that has not changed regardless of the many changes in forensic technology in the last 100 years.
“It doesn’t make sense to hang on to a law that goes back hundreds of years if it doesn’t apply to present circumstances.” Again a reasonable statement. But has anything changed in terms of the relative power of the state verses the individual? I think not. The reason for the existence of this principle has not changed.
“It makes no sense to me that if someone gets off on a particular case and then fresh evidence becomes available, DNA or otherwise, they literally get away with murder.” Now we are getting close to the real reason for this change. It has nothing to do with technology – that is simply a smokescreen.
The real reason for this change is the existence of a few high profile cases which have become emotionally charged. I am not sure who said it but the statement “I would rather see one thousand guilty people go free than see one innocent person punished” is one with which I wholeheartedly agree. I know that the victims of crime are extremely vocal and feel cheated when they perceive that the perpetrator goes unpunished but that is the price we pay for a free society where there is a necessary balance between justice and human rights. These principles are there as much for the victim as for anybody else.
The reason for the protections of double jeopardy, habeas corpus and the presumption of innocence have nothing to do with technology, they are to balance the enormous power of the state against the relative impotence of the individual. In fact the improvements in technology bias the system towards the state not away from it and is even more reason for maintaining the ancient principles that have served us for hundreds of years and makes the justice system we have unparalleled in history in terms of fairness.
I have said it before and I will say it again. We erode these principles at our peril. They jeopardise the rights of the very people who, in their ignorance are clamoring for their abolition.