How many times in the last few years have we heard it said that the law is an ass, following trials that have not had popular or expected outcomes, and where lives have been lost by the actions of those released on bail?
We know that nothing is perfect and that despite the best efforts of law-makers and the legal traditions of our justice system, ways can be found to flout the intent and spirit of the law by those who have the sophistry and cleverness to do so.
Where do we stand on the question of justice, in particular in upholding the “innocent until proven guilty” principle if disclosure of former, serious violent offending might prevent an offender from getting a fair trial and a just outcome? Clearly these are questions that will continue to be asked.
Can we assume that the past can predict the future?
Do we, who believe in the possibility of forgiveness, redemption and rehabilitation, accept the possibility that the knowledge of a person’s previous violent offending might contaminate the decisions of a jury?
We know from experience that sexual predation and pedophilia is a condition that requires life-long treatment or monitoring. And likewise, even after punitive sentencing we hear of people with a history of violence and lack of remorse reverting to similar behaviour, given certain circumstances.
Just as the police cannot divulge knowledge of a person’s previous convictions to the court because of privacy laws, so it is fair to assume that defence counsels also have this knowledge.
Questions have been asked how it is that defence lawyers can sleep soundly at night, knowing that their expertise and knowledge of loopholes in the law have successfully defended someone whom they suspect is guilty, especially in crimes where lives have been lost.
If lawyers know their clients are guilty I understand that limited defence is allowed if they confine themselves to testing the prosecution case. But does this stack up against defence based on intent and provocation?
Would it be fair to suggest that advising clients to make a plea in mitigation is a more moral and ethical was to proceed, and refuse to defend them otherwise?
Let us hope that the recent Christchurch case where Jeremy McLaughlin was found guilty of violently murdering a young schoolgirl before burgling and burning down her house might become a catalyst for change.
We know that the police were aware of the appalling crime he committed in Austalia, where he had served a prison sentence for beating one young boy to death and causing permanent, serious damage to another before running over their damaged bodies with a car.
A short time earlier her mother had gone to the police for a trespass order against this man but because of Australian privacy law and the constraints in our law on what can be disclosed about a person’s criminal history they were prevented from informing her. Had they been able to do so, her young daughter might still be alive.
It is known there are significant numbers deported back here from Australia after serving sentences for violent criminal offending. Is it time that a way should be found for the community to be alerted to this offending?
It’s a hopeful sign that Justice Minister, Judith Collins, said last week that public safety should be absolutely paramount and be put before a violent offender’s right to privacy.
I find it is worth reflecting on the words of Pope John Paul, written in July 2009:
“We are still a long way from the time when our conscience can be certain of having done everything possible to prevent crime and to control it effectively so that it no longer does harm and, at the same time, to offer to those who commit crimes a way of redeeming themselves and making a positive return to society. If all those in some way involved in the problem tried to . . . develop this line of thought, perhaps humanity as a whole could take a great step forward in creating a more serene and peaceful society.”
– Lyndsay Freer