The Inadequacy of Adversarial Justice

Recently I wrote a piece on the failings of the jury system as a way of delivering justice. However, juries are just the secret voting system which decides the winner of a battle between two champions and we also need to consider whether the adversarial court system is the best way of doing things.

 

It is worth noting that the reason we do things this way is a hangover from the medieval practice of trial by combat. This allowed disputants who were not in a position to physically fight their own cause (women for example) to appoint a champion to represent them. The barrister in a wig with a silver tongue is the equivalent of a knight on a horse with a lance.

 

In this piece I am only exploring possible improvements in the criminal justice system. In the UK we also have an adversarial system for civil matters where it is often even less appropriate than in the criminal courts.

 

Neutral third party mediation offers many advantages over the adversarial system in civil matters. It should be less formal and time consuming and my preference would be for it to be run by a private organisation rather that the government. The process involves a mediation that evaluates the circumstances and attempts to come to a fair outcome that benefits all parties that are involved. The outcome is not necessarily a one-sided judgement, so there is not a winner or a loser. Mediation is an excellent process for working through civil matters such as divorce, child custody disputes, neighbour dispute, debt and financial disputes, etc.

 

Mediation is more desirable than traditional litigation to resolve matters such as custody. The “win-lose” approach of the adversarial system often does not promote the best interests of the child. Private mediators require qualifications in psychology and social work for family or neighbour matters or financial qualifications for debt cases. They have an advantage over most judges because of their training in the specific field. Child custody involves a lifetime of cooperation. As people change over time they can return to the mediator to work through changes that benefit all parties. This can be done in a much quicker manner than in an adversarial court system.

 

Another advantage to private mediation is the substantial saving to the individuals involved because they do not necessarily need a lawyer to represent them. The taxpayer also benefits because participants must cover the costs of their own cases.

 

Returning to criminal law, shouldn’t it be self-evident that instead of a battle taking place between prosecution and defence over who can win twelve people to their side, the objective of a court should be to uncover the truth and protect society by ensuring that criminals are dealt with and innocent people do not suffer injustice. Apart from the problem of the outcome being dependent on the the most persuasive lawyer rather than the truth of what happened, the adversarial system also has ‘rules of combat’ which can only get in the way of exposing everything that needs to be known. We could probably agree that an accused person should be presumed to be innocent until they have been found to be guilty of a crime, but why should that include a right to silence? If a person has been wrongfully accused of a crime they ought to be eager to give every assistance in establishing their innocence. Silence from the accused only has the purpose of allowing the battle between the barristers can go on without the defence lawyer having his lance blunted. It has nothing to give to the discovery of truth.

 

Some might object that a defendant should not be forced to say that he was committing one crime in order to show that he could not have done the one of which he is accused. Why not? More justifiably it might be said that there may be alibi evidence that an accused person is entitled to keep private. Quite so and that is no problem. Although there should be no right to silence, there is also no requirement that all evidence is revealed in open court. If an investigating judge is provided with solid evidence that an accused could not possibly have committed a crime due to a strong alibi, that is all that the world needs to know. The key point is that all citizens have a responsibility to assist the pursuit of justice and an accused person is not excused from that duty.

 

As with the right of silence, the double jeopardy rule must be discarded. In recent years in the UK a second trial of an acquitted person has been allowed in a few circumstance of new evidence as it is increasingly recognised that dangerous criminals should not enjoy lifelong impunity because of a failed trial. The rule needs to go completely, along with the whole mindset that a trial can be tripped up on procedural challenges and a criminal acquitted unjustly.

 

So how would an alternative to the battleground court work? The alternative to adversarial trials is usually described as an inquisitorial method. Systems in use vary in their detail, but the basic principle is that crimes brought before the courts are first handled by an investigating judge or magistrate. It is the responsibility of this person to uncover as much evidence as possible about the crime and the possible responsibility for it. When sufficient evidence has been gathered to indicate that a person or persons have a case to answer, charges are laid and the case goes to hearing before a trial judge. The investigating judge will continue to gather evidence, if necessary, right up to trial. All parties are required to provide honest cooperation with the investigator at all stages and there is no right to withhold information. Giving false information or concealing evidence is a crime irrespective of whether it is done by a defendant, the police or lawyers.

 

When the case comes to trial, instead of examination and cross examination in a theatrical performance before a jury, prosecution and defence lawyers present their case to the judge in a verbal statement to add to the written submission already passed on by the investigating judge. The trial judge can ask questions of anybody involved in the case and if he or she wants to explore the quality of expert evidence or require additional expertise, they are able to do so.

 

One of the most important aspects is that even if a defendant has confessed or pleaded guilty, the trial must continue until the judge is satisfied that guilt is established or the accused is acquitted. This is an essential protection for people who are vulnerable to police pressure or who have mental difficulties that pre-dispose them to take responsibility for things they haven’t done.

 

I have referred throughout to the trial judge in the singular, but this is an oversimplification. One judge is satisfactory for cases where the possible custodial sentence is no greater than one year. Where there is a possibility of custody of between one and ten years there should be three presiding judges and for the most serious crimes a panel of five senior judges is appropriate.

 

Unlike jury trials in which no reason is ever given for the verdict and there is no way of knowing what reasoning the jurors undertook in reaching their conclusion, the judgements in an inquisitorial system must always be supported by written reasons. If the reasoning is faulty that is a basis for appeal.

 

Related articles

• Abolish the Jury System (malpoet.wordpress.com)

The Philosophy of Liberty

http://www.youtube.com/watch?v=muHg86Mys7I

Koran Burners, Cranks & Criminals

A BNP candidate for the Welsh Assembly, Sion Owens, was arrested and charged with a public order offence after police viewed a video of a man apparently burning a copy of the koran. It was alleged that Owens burned the book in his back garden.

When he appeared in court, the Crown Prosecution Service withdrew the charge, but said that investigations into his actions were continuing and that “almost certainly other proceedings will ensue.”

Earlier this month Terry Jones a publicity hungry American stepped out of his usual role of running his own weird church and appointed himself a judge to put the koran on trial. Surprise, surprise he found the book guilty and sentenced it to burning. When news of this event reached Afghanistan some more people with weird religious ideas whipped up a riot in which several people were murdered.

Last year, after Jones had first announced his plans to burn korans and backed off from it, the repulsive Westboro Baptist Church decided this was too good publicity to miss so they put an American flag with a koran and burned both.

So who are the criminals, who are not and what should everybody else do?

Whackos like Westboro and Terry Jones should be endured and largely ignored as part of the price of freedom. Publicity seeking people with crazy ideas are only a problem when sensationalist and circulation hungry media want to use them for their own ends. It would obviously be better if we had more responsible information providers, but we don’t and that too is is a necessary part of free expression.

The sadistic butchers who use koran burning, or any other supposed affront, as an excuse for killing people and imposing their deranged dominance over others are criminals. These people are a genuine danger to society and they need to be brought to justice for their crimes.

In contrast to the freedom guaranteed to American cranks by the US constitution, in the UK our equivalent loon, Sion Owens, gets charged with a public order offence for something he is supposed to have done in his own back garden. When that absurdity collapses the CPS bureaucrats do a tactical withdrawal with a warning that they will go away and think up another crime that they can nail him with.

Owens is probably just as much an inadequate as many other people who swallow the nasty and ridiculous policies of the BNP, but that doesn’t make him a criminal. The right response to Owens and his like is to not vote for them and leave them to the obscurity they have earned.

Our judicial system needs to grow up and allow citizens the ability to make their own adult decisions.

The Pig That Wants To Be Eaten

This is the title of a book by Julian Baggini. It is not about a pig. This is 100 thought experiments and really it raises the question of how useful are thought experiments in philosophy? Before I get to the pig, it is worth considering what thought experiments are. They have a history which seems to reach back to the origin of philosophy. To take a very simple example there is the liar paradox.

 

If I say that I am lying I am creating a self contradicting statement. If I really am lying I am telling the truth. This has many more slightly complicated variants such as the barber who shaves every man on an island that doesn’t shave himself. Who shaves the barber?

 

Many hours and millions of words have been spent on linguistic paradoxes. To me it seems largely wasted because it misunderstands language. If we see language as a tool that has been made for communication it can become clearer. If we develop a tool for joining two pieces of wood together by driving a metal rod through them it will work for that purpose. If we then decide that we want to shorten one of the pieces of wood and we try to use our joining implement for that purpose we don’t really do an effective job.

 

That is not to dismiss the thought experiment. It can have use.

 

The pig in question here was created by Douglas Adams in ‘The Restaurant at the End of the Universe’. As a story writer, Adams was a good philosopher. He speculates on a long time vegetarian who has always desired meat , but had sufficient will to resist eating it because of his moral objections. The veggie is then presented with the pig that only wants to be eaten. This pig is a little like an extremely religious person who regards life as a burden to be borne only until they are rewarded with the death that will bring them paradise and meeting their adored creator. The pig lives only to achieve its purpose in life of becoming a good meal.

 

The pig is accompanied by a de-natured chicken which lives its whole life without a brain and is provided with nutrients by sophisticated equipment. This chicken has lived, in terms of sentience, in much the same way as a cabbage has lived.

 

After much thought and sniffing the delicious cooking, the vegetarian is convinced and tucks in.

 

What this thought experiment does for is is to help focus on the elements of moral objection to eating meat. Does the animal have to have a nice life? Can it be killed without suffering? Is it right to kill the animal even if there is no suffering? And so on.

 

The thought experiment is not confined to philosophy. We have discussed in this group the Laffer Curve and its role in economics. This postulates that increased taxes could result in lower income to the government. When you think that if the tax rate is zero there is no income and if it is 100% people would be working for nothing so they probably couldn’t do it and the result would also be zero income so the Laffer Curve must be true. The problem is that the curve can’t tell us anything about where on the curve the return to government starts to fall. It may be that people will carry on taking the tax burden right up into the 90 percents, or they may lose interest in earning if they are having to hand over only 30% or so. There is also the time question. Maybe people will tolerate high taxes for a year or two and then weary of it to the extent that they find ways around income tax or they move abroad or something.

 

What it comes down to is that a thought experiment can give ideas, but in the end you must get your hands dirty and get down into the empirical detail. Read the book though. It is thought provoking.

 

The Big Society

Society has been progressively smothered by big government in a process that started at least a hundred years ago with the Lloyd George government.
It will take several generations for citizens to emerge from their present infantilised condition to be able to run their own lives, bring up their families and self manage their communities.
Government cannot create a ‘Big Society’, it can only start getting out of the way so that society is given the space to grow.
At the moment our economy is prevented from emerging from worldwide recession by the enormous debt created by the disgraceful spending spree in which the Labour Government tried to buy an election victory.
Job creation is also strangled by the the thousands of laws and regulations that began with the deluge of equality and health and safety laws in 1974 and reached epidemic proportions with the last government. I know that many people like to blame the EU for this. They play their part, but the truth is that our own government gold plates EU directives all the time and our bureaucrats are at least as bad as the Brussels ones.
Never mind the political slogan of Big Society. Let us have the freedom to build our societies. Essential steps are to cut state spending and cut taxes. Abolish laws and regulations that are making it difficult to employ people and unattractive for enterprises to want to operate in Britain.
Reduce the number of MPs, abolish all Quangos and scrap unaccountable bodies like the House of Lords. Devolution of some power to Scotland, Wales & NI was a good thing, but nothing like enough. Power must be devolved from Westminster to villages, towns and communities. Society can only function on a human scale. Things affecting our everyday lives should be the responsibility of ourselves and people who are so close to us that we know them and can call them to account.
National and international bodies are necessary for the law of the sea, defence of the nation and the small number of things which cannot be done locally.
Power corrupts. We have too many corrupt politicians because they have been allowed to take on too much control of our lives. Laws are necessary, but they need to be small in number, easily understood and rigorously enforced. We should never have got into a situation where some of our law makers are law breakers. The answer is to bring politics home, or at least to our neighbourhoods.

Smoking, advertising and health

The Government continues to rant on about requiring tobacco products to be in completely plain packs and for them to be hidden under the counter. Apart from this making cigarettes more enticing for kids and increasing the ease with which criminals can sell smuggled rubbish on street corners, anti-smoking laws are more widely damaging.
The constant preaching and tax wasting campaigns from the government and an army of interferers who insist on trying to tell us how to lead my lives will not work. The number of people who smoke has reduced from the time when the state made free issues to the military and it was almost abnormal to be a non-smoker. That is a good thing, but it is not the result of stupid laws and wasted taxes. Society develops, we get more information about health, we become aware of causing others discomfort and that changes behaviour in all sorts of ways. Most of the laws follow changing trends rather than cause them.
Social activity has suffered seriously as a result of the smoking ban and the truth is that mental health problems are a greater source of human misery in the modern world than the physical ailments caused by smoking.
Nicotine is an anti-anxiety drug which people fund themselves and it is no more addictive than the tax funded diazepam that often replaces it. As a catalyst to social communication and friendship building smoking actually reduces the scourge of loneliness and isolation that is being aggravated by pub closures.
All of the stuff we are told about NHS costs caused by smoking are nonsense. Poor mental health is an enormous burden on society as well as individuals, and smoking is one part of keeping that type of ill health in check. Cruel though it sounds, it is also true that the highest whole life health costs come from people living to a great age. If they die a little younger (and possibly happier) because they smoked, the costs to the health service will be lower overall rather than higher.
Let us have an end to preaching, lies and excessive intrusion into private choice. Pubs, restaurants and workplaces should make their own decisions whether or not they want smokers or if they want to designate special places. As a non-smoker I will make my own judgements about where and with whom I want to eat and drink. This is not a proper decision for government.The prohibition of alcohol in the USA in early 20th century did nothing to reduce alcohol misuse. It increased the number of people killed and maimed by illegal distilling and it created an enormous organised crime network that has never been defeated. As our government moves blindly towasrds tobacco prohibition, the same types of side effect will grow.
The government is a bigger threat to a safe and healthy future than free individuals making their own choices and all of us expecting to be treated with dignity, courtesy and respect.

Two Types of Freedom

 

In common with others, I regard the words ‘freedom’ and ‘liberty’ as interchangeable and I will also treat ‘rights’ and ‘entitlements’ as having equivalence.

Jean Jacques Rousseau said: “Man is born free, and everywhere he is in chains.” – The Social Contract

What he meant by this was that government was only legitimate if it had the assent of the people through a ‘social contract’. This was a revolutionary concept in the early 18^th century when European countries were largely led by monarchs claiming divine authority and rejecting the need for approval from their subjects. These kinds of ideas have been seen as influencing the French revolution and laying some of the philosophical roots of socialism.

By the 19^th century in Britain the ideas of Adam Smith about free markets and the Whig campaigns for free trade strengthened views about the importance of freedom of the individual and property rights. Into the 20^th century writers like Dickens and then the horrors of the 1^st WW, the depression and then the 2^nd WW decisively shifted thought towards the need for the state to provide a comprehensive framework of welfare so that nobody should suffer complete destitution. So the welfare state, which made its first, tentative steps in Lloyd George’s ‘People’s Budget’ of 1909, became fully fledged with the Beveridge report (Full Employment in a Free Society) of 1944 and the legislative programme of the 1945 Labour Government.

The best known modern philosopher to deal with freedom is Sir Isaiah Berlin in his 1958 lecture ‘Two Concepts of Liberty’ and his later ‘Four Essays on Liberty’, and it is from his work that this paper is drawn. Berlin examined the difference between what he called the negative freedoms and positive freedoms. Unfortunately these terms carry value connotations which I would prefer to avoid so I will refer to freedoms ‘to’ or freedoms ‘from’.

‘This is a free society’ is a familiar response to perceived abuse of authority by Police or officials, but what is freedom, and a free society? For Rousseau it was sufficient that laws were enacted with the consent of people exercising free will. In that respect, so far as democracies work properly, we are free.

Berlin points out that this doesn’t really get far enough into freedom to be satisfactory. We are all free to lunch at the Ritz, take a box at the Royal Opera House, dine at Claridges and then while away the night drinking fine champagne at the tables of an exclusive gaming club. The problem with that is that most of us lack the means to enjoy such freedoms

It was necessary, he said, to consider whether people were free from hunger, free from fear, free from exposure to the cold of winter without shelter or adequate clothing. This brings us back to the idea that genuine freedom must involve some sort of fairness to the extent that nobody should be so lacking in the capacity to meet such fundamental things as survival needs because that surely takes away their freedom to live.

It becomes clear that establishing some freedoms may take away others and a moral or political judgement must be made on which types of freedom should have priority.

A new phase of development started with the Labour government which came to power in 1974 when we had a wave of legislation on equal pay, anti racism and health and safety aiming to provide freedom from discrimination, prejudice and risk. The change to Thatcherism in 1979 limited the strength of the trade unions, but did nothing to undo the 1974 reforms and when New Labour became the government in 1997 a new wave of laws prohibiting discrimination against gay people, disabled or older people as well as prohibitions on religious hatred being expressed. The state has now entrenched a position in which the law protects freedom from being offended or inconvenienced above the freedom to think, speak or write freely.

As we start to get into the detail, the distinction between freedoms of the ‘to’ and ‘from’ types can become complex. The freedom to smoke in a club, bar or restaurant has been removed in the name of giving staff and others the freedom from secondary smoke. Of course the freedom from secondary smoke is the freedom to breathe smoke free air and resorting to terms like negative or positive freedom does not help in this context.

Anyway, I think we can all recognise the difference between freedom representing an absence of constraint and freedom meaning an enablement to benefit from something that is seen as something which one ought to be able to do or have.

I started nearly three centuries ago with the evolution of ideas of freedom under the law and freedom to have one’s property protected by the state and moved to a current situation in Britain in which freedom has moved so much towards entitlement that the nature of freedom has been obscured in the public mind.

It is no longer a case of ‘I thought this was a free society’ to one of ‘I know my rights’.

When freedom from want has come to embrace a commitment to eliminate child poverty, among many other similar commitments, the freedom of the working citizen to use the product of their own labour has been greatly constrained by the tax burden and the maintenance of the national debt. It is obvious that when you define child poverty as the situation in which a child lives in a household living on less than 60% of the median income you cannot do that unless you also eliminate most differences in income. To do either thing requires massive redistribution of wealth away from those who produced it to those who didn’t. This in turn, as Adam Smith comprehensively showed, would result in a fall in national income. Paradoxically this could result in the child freed from relative poverty being absolutely poorer than before this absurd objective was achieved.

Today in Britain between two thirds and three quarters of households receive more in state benefits than they pay in taxes. The top one percent of earners pay twenty five percent of tax. Approximately forty three percent of the economy is directly controlled by the government and one in five employed people works for local or national government (that does not include the large number of people employed by quangos or large charities receiving government grants, etc.). Communist China has a more free enterprise economy than the capitalist UK, and the GDP of China has overtaken that of Britain.

Where the elimination of want by use of state benefits has extended to the point where providing for oneself and ones family has become a lifestyle choice; is part of being human lost? Where the state is a universal parent and no citizen is allowed to fully grow up, hasn’t some vital element of the freedom to live been lost.

Berlin was right to distinguish between different types of freedom. Should we now return to this subject as philosophers and examine whether we can probe further into what it means to be free?

As far as I am concerned, I think the government is taking a liberty, but like Mr Humphries in ‘Are You Being Served’. I’m free!

Liberty and knowledge

 

Free choice in education

Vouched safe with Libertarians.

DNA, surveillance & Freedom

 

Following a European Court ruling there is to be a change in the way that DNA records are held in England and Wales. The indications are that records of those who have not been convicted of an offence will be destroyed in most cases after six years.

 

Many libertarians will instinctively feel that they should oppose the holding of DNA records of innocent people at all and I obviously understand that. I think these proposals are wrong for completely different reasons and I believe that we need to address the question of DNA thoroughly and consistently.

 

Like everybody else born in this country, my birth was registered and a birth certificate was issued which was supposed to reliably establish my identity for all kinds of purposes throughout my life. When this system was introduced many people opposed it as an infringement of personal privacy and liberty. In more than 150 years of use I am unaware of it being misused by government agencies although criminals frequently obtain birth certificates of other people in the furtherance of crime.

 

About forty years ago I was arrested when I was on a political demonstration and my finger prints were taken. I do not know whether these records are still being held, but I presume they are and it is of no interest or concern to me at all. There was some concern about privacy, accuracy and misuse when finger prints were first used in the 1880′s, but a standard was fairly quickly established and nobody has bothered much about them since. Finger print evidence has been critical in ensuring that many violent criminals have been brought to justice and the public protected.

 

Many changes in the 21^st century world have meant that birth certification is no longer a satisfactory way of establishing identity and DNA is a much more accurate and informative biometric identifier than fingerprints.

 

This brings me to the issue of the DNA database. Of course some people will be unhappy that their DNA record is kept on a database if they have not been convicted of any crime and the database is compiled by the police and the record is associated with criminals.

 

From the viewpoint of public protection there is the serious issue that approximately half of those people who have their DNA recorded on the database will go on to be convicted of a criminal offence within six years. That is a very good argument for keeping the information even if the person concerned was not convicted of anything at the time that the sample was taken. The problem, of course, is that the half who have not been convicted within the six year period may contain some future murderers, rapists or terrorists and we are now considering destroying the means by which they could be identified and brought to justice. Several murderers have already been convicted due to DNA records taken for trivial offences or incidents in which there was no conviction at all.

 

This country is now absolutely covered in CCTV cameras monitoring the movements of the vast majority of us as we go about our law abiding lives that should be private to ourselves. Masses of our private website visits, email communications, telephone conversations and other activities are being routinely stored and searched for all kinds of purposes. This is an illegitimate intrusion into privacy and freedom.

 

Being concerned about public protection and considering that the only legitimate activity of government is to ensure the safety and property of its citizens I want criminals to be prevented from committing crime and quickly caught when they do.

 

The solution is straightforward. The criminal DNA database should be continued only until it is fully replaced by a universal biometric record for everybody present in the country. Every child born should have their DNA recorded on the national database. The child’s name would be recorded within the same time limits required for existing birth registration.

 

There is an enormous difference between being able to identify a person with certainty in the event that it is required and spying into their every activity. The former is necessary and the latter is unacceptable. It is also unacceptable that people should feel unjustifiably tainted with criminality, but we must not throw away the best means of preventing crime by failing to put in place a proper system.

 

The twenty first century world requires better and more secure records than nineteenth century birth registration.

A Caution

The only legitimate function of government is to provide citizens with personal safety and protection of their property. While the state interferes to an ever increasing extent in the personal lives of everybody and passes ever more restrictive laws on the businesses that provide income, and goods by which we live our lives, it is repeatedly failing to do the job for which it exists.

A recent BBC enquiry revealed that in the east of England alone the police issued nearly 30,000 cautions for burglary, sex crimes and assaults in 2005/6. A caution is only given where there is sufficient evidence for a prosecution and yet in this large number of serious offences the police are choosing not to prosecute even though the offender has accepted their guilt.

The Home Office website makes a strong point about cannabis having been re-classified as a class B drug (despite the scientific evidence making it very clear that this was not justified) and that personal use of cannabis could result in a prison sentence of up to five years and fourteen years if you sell it. Using cannabis has some risk for the person doing it, although not as much as for some legal and prescription drugs, but it is not something that does harm to other people. Burglary, sex crimes and assault are violent crimes that traumatise victims and cause peoples lives to be seriously limited by fear.

We have more police in this country than we have ever had in our history and we also have more laws than ever before. The Commissioner of the Metropolitan Police has said in today’s Sunday Times that the public are being let down by failures in the criminal justice system. Too many violent criminal and habitual re-offenders are not being dealt with effectively.

The public is worried by it and the police are well aware of it, but the government continues to fail to do its only proper job.

Our message must be clear. Stop telling us how to live our peaceful lives in our own way; stop spying on everything we do or say; stop taking most of our money away from us in taxes and then wasting it on failed bankers or stupid PC laws. Above all stop violent criminals from damaging our lives by properly enforcing the simple laws that have regulated our society for centuries and which you have now lost sight of.

Dangerous criminals must be taken off our streets and the rest of us must be left to live our lives.