Send not to see for whom the bell tolls…

There seem to be to be three fundamental principles within the justice system that we have inherited from the UK that ensure fairness and protection for our citizens. These three principles have been established over many centuries and are present in the legal systems of the UK, the US and Australia, to name a few. They are enshrined within common law, statute law or various constitutions. These three principles are the presumption of innocence, habeas corpus, and protection against “double jeopardy”. As our systems of democracy have evolved so have our systems of justice such that we have a system of government together with system of justice that is unrivalled in its fair treatment of its citizens in all of recorded history.

The purpose of these principles is to protect the states citizens against abuse by the state.

In the judgment by the Chief Justice Gleeson & Justice Hayne, R v Carroll [2002] HCA 55 (5 December 2002) at [21]-[22] they state;

“A criminal trial is an accusatorial process in which the power of the State is deployed against an individual accused of crime. Many of the rules that have been developed for the conduct of criminal trials therefore reflect two obvious propositions: that the power and resources of the State as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious. Blackstone’s precept “that it is better that ten guilty persons escape, than that one innocent suffer” may find its roots in these considerations.

Many aspects of the rules which are lumped together under the title “double jeopardy” find their origins not so much in the considerations we have just mentioned as in the recognition of two other no less obvious facts. Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression. Further, finality is an important aspect of any system of justice.”

What they state regarding double jeopardy can easily be said of the presumption of innocence and habeas corpus.

The great tragedy is that in recent years there has been an erosion of these three pillars of justice for political expediency and popularist sentiment. In an interview recently on the legislation passed in the US parliament regarding the Guantanamo Bay detainees one of the interviewees said that the reason habeas corpus was enshrined in the constitution was that it would not be subject to the political whim of the government of the day and that this, with many of the other constitutional principles, was too important a right to be left to a popular government.

There has already been an instance in the UK where a man who was acquitted of murder was retried and found guilty, thus being subject to double jeopardy. In this country there are ongoing debates, mainly fuelled by popularist, emotive and ill-informed public debate on high profile cases where it appears that “criminals” have been acquitted on technicalities. What this ignores is that these cases often take months to hear and digest all of the evidence and that the people deciding on these cases have given much time and effort to weigh the evidence and come to a considered decision. To think that a few column inches in the local paper can provide anything than a cursory glance at any of these cases is a mistake. The other popular argument is that advances in science have made more evidence available. Well this does apply to old cases where that evidence is available but that does not apply to new cases. In any case there has always been the possibility of discovering new evidence by other means and availability of new evidence, by whatever means, has not been an argument before today so scientific advances does not substantially change the argument.

In previous entries I have spoken about habeas corpus and the presumption of innocence. I find the desire to reverse the many centuries of hard won liberties and protections against state abuse of power disturbing. People need to understand that these principles are there for their protection and by removing these protections they are seriously eroding the democratic principles that give us a free and open society. People who feel that an injustice has been done by the release of alleged offenders on “technicalities” are making a rod for their own back if they think that abolishing any of these principles will server their interests. In fact it is my opinion that the weakening of any of these, as has already happened in many places, will only serve to harm those who are seeking these changes.

I am reminded of the words of John Donne when I think of the calls for the abolition of theses protections, “Send not to see for whom the bell tolls, it tolls for thee.”