Justitia

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What a pity we didn’t have the modern media in earlier times. Just think of the entertainment with close-up shots of people being burnt at stake, or hung drawn and quartered. Think of microphones stuck on their faces for last-minute reactions. Or cameras for reaction shots of loved ones. Cameras set up permanently at stocks to see the tomatoes and rotten cabbages hit the faces. Run with vigilante mobs as they hunt down some suspect in the Wild West.

Those images occurred to me this week as there was discussion of some British move to have “victims of crime” decide on the sentences the perpetrators of crime will get. Already similar moves here with “victim impact statements” before sentencing.

The media are pushing, pushing, pushing to take us away from the idea of an impartial justice system with people presumed innocent unless proved guilty, and with the presiding figure of Justice herself,  eyes bandaged to avoid bias, weighing the scales impartially. In the days of X-Factor and Big Brother and Survivor where’s the entertainment value in that old-fashioned nonsense eh?

At the same time as the media pushed for revenge to come back into sentencing came another case illustrating what is happening to our justice system.

In 1991 highly respected, much-loved and valued heart surgeon Victor Chang was shot dead during a failed extortion attempt. The two killers were sentenced to very lengthy jail terms. One was released, after 18 years, a few years ago, the second, after 21 years of a 26 year sentence, was recommended for parole recently, on the grounds that he was aged 69 and suffering from advanced Parkinson’s disease and dementia and hadn’t long to live. Open and shut case? Not these days.

Immediate outrage from media, followed by more outrage from populist conservative govt leading to legal challenge. That failing, followed by deportation (both killers were Malaysian nationals). Media following to airport, where vision of a frail old man with shaking hands was accompanied by a journalist voiceover saying that he showed “no sign” of the “illness which supposedly had him released on parole”. Followed by cameramen filming him during plane trip. Followed by a tv interview in which he expressed his sorrow and regret for what he had done. Followed by a “victims of crime” spokesman rejecting the apology as not sincere.

Hard to know where to begin with this. It is the classic media “whip up outrage and sell newspapers” ploy. And it gets people phoning the shock jocks, reading blog opinions. Fundamentally the media have taken the stand that all sentences should be for life and that there should be no parole. They don’t really believe this, but saying they do will agitate the people who believe we should still have public whipping and hanging. And will agitate the victims of crime who believe no punishment is too great.

Jail is meant to serve four purposes: punishment, public protection, deterrence, rehabilitation. The second and fourth of those were no longer relevant to this sick old man. The deterrence part was long gone (“hmm, if I murder someone and am sentenced to 26 years and contract Parkinson’s and Alzheimer’s diseases after 20 I’ll get parole and be deported. Hey, that’s pretty slack, where’s my gun.”). So that leaves punishment.

Punishment, as William Gilbert remarked, is meant to fit the crime. That is why we have a graded system of sentences to match a graded system of crimes of increasing seriousness. If you are going to give the maximum sentence for small crimes how will you discourage greater crimes? Australia should be specially sensitive to this given our convict past arising from a criminal justice system that could hang someone for poaching, send them to Australia for stealing a handkerchief. If you always demand a maximum sentence, if you complain about parole board decisions, however strongly based, then what we have reverted to is a legal system based on revenge, not justice. And revenge, as Shakespeare and indeed the Greek playwrights knew, puts bums on seats.

As I was writing this came yet another disturbing development. The West Australian government announced the launch of a web site carrying photos and details of paedophiles. As the lawyer’s association pointed out, this is a clear invitation to vigilantism, and the attendant problems of misidentification and the discouraging of rehabilitation.

Look, dunno about you but if, Rumpole forbid, I ever found myself entangled in the legal system, I would rather my fate was decided by a qualified judge and a jury of my peers and an experienced parole board, than by a sensationalist media, populist politicians, and wannabe lynch mobs.

Time the tabloids (of print, television, radio) cooled it on the legal system, or before you know it you might have policemen bribed, phones tapped, people followed, all in the name of sensational stories from court cases. And then, who knows, members of the media might find themselves in court, being covered by other media…

It’s in no one’s interest for the justice system to be turned into a branch of the entertainment industry.

Without the law

At various times and places your chance, as an ordinary member of the public, of being the victim of injustice were very high indeed. Kings could throw you into a dungeon and leave you there without charge or trial forever. There were witch hunts and vigilantes and posses, all determined to take the law into their own hands and punish whoever it was that they thought was guilty of something (not infrequently just guilty of having the wrong coloured skin, or the wrong religion). There were neighbours induced to spy on neighbours (in Nazi Germany, East Germany, and, most recently, in Libya). There were people forced to incriminate themselves in Stalin’s Russia and Joe McCarthy’s America. Poor people with poor or no lawyers rotted in jail or were hung for crimes later DNA evidence showed they were innocent of. Bullying can drive children out of school, gossiping can drive families out of neighbourhoods. All of it has been a trial by ordeal.

These days we have trial by media. I have written about this before, but it is getting steadily worse. It began with the adoption of the American style of silly young reporters sticking their microphones in front of the face of the accused as they entered court hoping, it seemed, that the not yet proved guilty person would break down, sobbing, on the courthouse steps and confess their guilt to the private confessional of the Channel nine reporter’s microphone. This continues (how can you lose? Even if, unaccountably, no person on trial has yet saved the taxpayer’s money by admitting their obvious guilt, you still have the footage of the silly young reporter asking the questions and the accused trying to shiftily avoid them) but the corruption of the legal process has now gone well beyond that. Current affairs programs will now run whole interviews with the person deemed, by the press, to be the most obvious suspect. Astonishingly, it seems, the obvious person is never the guilty one, as they will seriously explain to the viewing audience. That’s all right then, wonder who did do it? Such interviews have a considerable potential to affect a jury in a subsequent trial, but, who cares, ratings are all that matters. Television reporters will happily discuss all the evidence available to them, are permitted, these days, to follow the police squad as they break down doors, stop cars, search premises. Occasionally the reporter, will, as they learnt in long ago journalism school, throw in an “it is alleged” but almost invariably in the wrong place. Again, the likelihood of unsubstantiated, untested allegations being broadcast as fact and linked to an accused will almost certainly influence any twelve good men and true. Neighbours will be interviewed, prompted to say how surprised they were to discover they were living next door to a drug lab/terrorist/serial killer/sex fiend in such a quiet street which had never been raided by tv crews before.

Then, when a case is over, a guilty or not guilty verdict reached, a sentence handed down, will come the interviews with victims, family members, random people passing in the street, who will all agree that the sentence was too lenient or (occasionally) too harsh; the not guilty verdict outrageous, the guilty verdict unsound. Stern faced old journalists, or fresh-faced young ones, will happily point out, on the basis of their extensive experience and training in the law, and their detailed examination of all the evidence in a particular case, where the judge “went wrong”. Trying to destroy people’s confidence in the legal system, encourage vigilante action? Surely not …

But we have gone even beyond this. Not only do tv crews get to ride along on “drug busts”, but the whole field of law enforcement has been turned into a reality tv circus. Whether it is the customs service, highway patrols, random breath testing units, the approach is the same – ordinary people encountering the law will be turned into objects of derision, fun, humiliation. People who the television reporter decides are guilty of something, or appear to be guilty of something, or are of an ethnic group that is likely to be, he thinks, guilty of something, the judgement is made, the audience invited to witness the trial by ordeal for their entertainment. And later all of this information can be put together to form a program in which family friends of the convicted person say they don’t think he was guilty and “re-enactments” contradict evidence contested in a trial; or a whole series of dramatised “re-enactments” glamourise criminals and “crime matriarchs”, turning them into celebrities like any other celebrities.

It seems to me that in these quiet Australian streets 500 years of evolution of a justice system are being quickly trashed by media outlets intent only on making a profit, and we are returning to those earlier times and places where law meant nothing.

Are they guilty do you think?

Merely players

4

And so the Premier of South Australia wants television cameras in courtrooms. And television stations wonder, oh so hesitantly, whether this might not be a good idea for the justice system. Of course America, famous for the quality of its justice system, and the size of its prisons, lets cameras in, and this is one area where we haven't yet followed their lead.

How could you possibly argue against the proposition? After all, there have been endless television reality shows based on the police, rescue services, hospital emergency, surf life saving, operating theatres, customs, police recruits, fire brigades, airports, and I may have missed one or two. They all work in the same way – because the activities involve humans in traumatic and emotional circumstances, there will always be tears before bedtime, either from the people concerned, or from the professionals working with them, or preferably both. And all you then need to bump up ratings is a cameramen able and willing to get his lens so close to the crying face that the tears will glisten like small diamonds – and they can practice on funerals. Plenty of funerals.

While there is a rich harvest of tears, from protagonist and family, when people are drowning, or having livers removed, or bags searched, or doors kicked in, or houses burnt down, you can never have too many. And so the rise of artificial tears (like the rise of artificial pearls – produced on demand and cheaply) which can be made in the laboratory, by formula, in quiz shows, and talent quests, and weight loss contests, and obstacle races, and in families manipulated by swapping wives or parents, and, the big daddy of them all, in shared houses where one contestant is going to be removed each day until only one, newly rich, remains.

But somehow there is still not enough. Oh, many nuggets of gold among them, but they are desperate for the gold mine that would produce Welcome Stranger nuggets week after week. And that gold mine is the law. Sadly there are now no public executions where people are torn apart by lions, or hung drawn and quartered, and some killjoys even stopped public hangings and then all hangings, but there is still plenty of potential gold in the law courts, day after day, year after year. It's not as if the television cameras haven't made some use of the mine. Cameras are thrust into the faces of criminals and victims and lawyers entering and leaving court. Cameras are banged against the windows of police vans and police cars, anything to get a glimpse of the person trying to stay private inside. Stupid questions are asked of those on trial "Did you commit these murders?" as they enter court on the first day. Stupid questions are asked of the families of convicted people on the last day of trial. Do they stay silent? Well, there will still be tears. Do they get angry at our intrusion? Great television. And victim's families, always good for a tear if asked, once again, to relive the event.

So only one small step for a cameraman to get inside the court, one giant leap for mankind though. And once inside, are they there to serve the public by filming judge's verdicts in detail, as I heard one well-meaning proponent say? Yeah, right, course we are, nudge nudge. No, inside the court they will behave just as they now do outside, searching for those precious tears, worth their weight in gold. Just one more reality television show to feed the insatiable demand the public apparently has for raw emotion, people in trouble, stress, heartbreak, fear, depression, hatred, drama.

All the world's a stage. Or it soon will be.

All David Horton's earlier writing is here.