Observations of an ordinary man

Legal

A Fair Legal System?

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I’ve been thinking about our legal system. It is meant to be focussed on Justice. I’m not sure that is the actual case, and while ever it is an adversarial system, I’m not sure it can be.

Let’s look at the two main roles: the prosecution and the defence. The role of the prosecution is to gain a conviction and the role of the defence is to avoid one. Neither side is particularly concerned with getting to the truth of the matter. Let’s look at these in a little more detail.

Prosecution

The Police collect evidence against an individual and present it to the Department of Public Prosecutions who decides if there is a case to answer. At this point the prosecution side of the equation is now after a conviction. There is no further search for the truth, only a guilty verdict. Any evidence that may point to the individual’s innocence is now looked at from the perspective of how to discredit it. In the mind of the prosecution, the guilt is a fact.

Defence

Once the charges are laid, and even before in many cases, the defence sets out to discredit the evidence and gain an acquittal. This is the case whether the accused is actually innocent or not. In many cases the defence lawyer knows that the accused is guilty. This does not change their approach. If they can discredit enough evidence then there will be no basis for a conviction.

Justice

This does not strike me as the application of justice. It is purely using the letter of the law to gain a desired outcome, an outcome that is very different from the perspectives of the prosecution and defence. The Oxford dictionary defines justice as the “quality of being fair and reasonable”. Convicting an innocent person or acquitting an innocent person is neither fair nor reasonable. Neither is it fair and reasonable to mete out a lesser punishment to a person just because they could afford a more expensive lawyer.

So what do I think should happen? In oversimplified terms, the role of the prosecution should be to determine if there is sufficient evidence to prosecute and then manage that prosecution. The role of the defence would be to ensure that their client is treated fairly. If they are in fact guilty then the defence’s role is to ensure that the punishment meted out is a fair one. The overall drive of the system should be to determine the truth. If some evidence points to the acucsed’s innocence then the prosecution should follow it up with the same fervour that you would expect the defence to and if defence should similarly follow up any evidence that points to the accused’s guilt. This follow up to the evidence should not be from the perspective of discrediting it.

I live in a dream world, I know, but the current system is not working. We have people being locked up because their defence was not up to the task of proving their innocence and we have guilty people walking free because the they were able to discredit key evidence. I long for a world where the justice system is concerned with truth and justice, not policy and procedure.

There should be more than 12 angry men, we all should be angry at our faltering “justice” system.

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