This might sound like a strange topic for someone who had sworn to uphold the law, but in fact I believe it makes me better qualified to comment. I also sincerely believe that the views I have are shared by many.
Unfortunately crime is rampant and generally on the increase, wherever we look in the world. The perpetrators of these crimes should wherever possible be brought to task, and pay their debt to the society they have abused by not respecting the laws of that society. I do believe in forgiveness, but I do not believe it to be hypocritical to say that those who choose to indulge in criminal acts must pay some penalty when they are found out.
Although the actual system may vary from one country to another, nearly all countries of the "free world" follow a similar pattern. They utilise an Adversorial process, where the accused has the right to have any charge against him brought before a court. He has the right to legal representation. Different offences are heard in different levels of the court process, but that right to have the matter determined in open court remains. (An exception in Australia, at least is Children's Courts, which are closed to the public and cannot be reported on by the press. All names are kept confidential, but the child still has the right to have the matter determined by the court)
Unfortunately some nations do not give their citizens that right, but that is another issue.
In nearly all cases determined by a court, at whatever level, the decision is subject to appeal to a higher court, so the process can sometimes seem endless and take many years to finalise.
The basic problems arise because of a couple of issues. Those who make our laws (the Legislators) have simply made many laws, which are ambiguous in their meaning. Legislators make laws and the Judiciary interprets the law. Both powers are totally separated, as they should be. It is not for those who make the laws to tell those who pass judgement what they meant, nor does the opposite apply. Those who pass judgement should not have to ask Legislators what they mean. It is important that when laws are drafted they are clear and concise in their meaning and intention. Therein lies the root cause of a major problem. Clever lawyers spend endless hours trying to find a way to make any given word or sentence a multitude of meanings, thereby creating "reasonable doubt." If they succeed, then the guilty go free.
Totally forgotten in all the arguments between the protagonists, are the victims. They are just pawns in a game of chess between prosecutor and defender.
I myself have been the subject of some very clever cross-examination by some of these lawyers so have experienced it first hand.
To give just one example, although not one in which I had any personal interest in, it shows just how desperate some lawyers are. (please bear with me) In this state we have a law which makes it an offence inter-alia "to be in charge of a motor vehicle whilst under the influence of liquor". It certainly doesn't mean that someone sitting at home enjoying a beer with his car keys in his pocket and his car in the drive is committing an offence. Its intention is to cover a scenario where a Police Officer has reason to believe someone who is under the influence of liquor either did drive (as in leaving the scene of an incident) or is about to drive a motor vehicle. The clear intention is the prevention of a further offence or the apprehension for a previous offence. Because the offender was never actually caught driving, it cannot be argued in court that he did in fact drive, so the offence of "being in charge" came about. Coupled with this is the legal definition of the word "intention". Basically one must form an intention to commit an offence before they actually do so. I apologise for the long-winded explanation, but it is necessary for you to understand the following paragraph.
A person was seated in his vehicle, the motor was running and he was clearly affected by liquor. He was subsequently charged with the offence "of being in charge of a motor vehicle whilst under the influence of liquor". His plea was Not Guilty and he retained the services of a very highly paid lawyer (now deceased) who spent his entire career in the defence of drunk drivers. (I won't comment on that). This lawyer came up with the clever argument that the accused could not be guilty, "because he was too drunk to form the intention to drive. He argued, the motor was only running to allow the person to have the car heater on in order to keep the interior of the vehicle warm. Unfortunately the court agreed with that argument and the guilty party walked away a free (but somewhat poorer financially due to legal fees) man.
What was the Police Officer to do? Let him drive away and possibly kill someone, or try and prevent a further offence? It was a case of a "No Win" situation for the Police Officer involved.
So far I have only addressed matters relating to interpretation of the law, but there is a further issue which also needs to be rectified.
Criminals who are convicted and sentenced are continually receiving lesser and lesser penalties for their crimes, than they would have even a decade ago. Life imprisonment, somehow means ten to fourteen years and then they are paroled. A sentence of ten years imprisonment usually ends up meaning about half that. Many are not even sentenced to incarceration, but placed on "good behaviour bonds". Judges seem to be leaning more and more to totally inadequate penalties for the crimes committed. Lobby groups protest and petition for the "rights of prisoners". Somewhere along the line everyone forgets the victims of crime. For every crime committed there is a victim that suffers.
Those criminals I find most offensive, are the ones who suddenly proclaim to have found salvation whilst in prison. They use this to convince others of "their new found life", and thereby quite often earn even greater remissions because of their claim to have been rehabilitated.
There are exceptions to every rule, but many of those who claim to have "found salvation" whilst in prison simply forget about it once they have obtained their early release and return to their old criminal ways until they are caught again and the whole process is repeated.
I personally am a great believer in the old adage, "If you are going to do the crime, then do the time."
Sadly most leopards do not change their spots and a career criminal will always be just that. His profits from criminal acts sometimes means he can afford expensive representation and he walks free on one technicality or another. Prisons are basically filled with the poor who cannot afford highly paid representation, whilst the wealthy go free.
I respect the right of everyone to be represented and to receive a fair trial, but I find it difficult to accept some defence counsels who do nothing but keep the guilty on our streets. It is both hypocritical and immoral.
A famous English Jurist once said "It is better that one hundred guilty men go free than one innocent man be convicted." I don't think he meant to let the obviously guilty go free on technicalities of law.
More thought should be given to the victims of crime and criminal acts. They presently have no standing in the legal system and are treated as nothing.
For those reasons, I sometimes think; "The Law Is An Ass."
©Copyright
Dark Blue Knight
10th January 2005
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