The mob won’t be whinging about this man getting off

There’ll be a lot of people who’ll cheer this without thinking it through:

But he instead he went into the boy’s bedroom and massaged his genitals telling him he was a “pretty boy” and they would be “best pals forever”.

When the upset and teary 10-year-old told his father, he is alleged to have dragged Davidson outside and bashed him almost unconscious.

But a jury today took just 40 minutes to return a not guilty verdict after magistrate Walter Tutt told them they must “consider if what the defendant did were the actions of an ordinary reasonable person given the circumstances”.

Paedophile beaten “almost unconscious”. What “reasonable” father could have done more?

But this is the thing. A state which accepts “provocation” as some sort of complete defence to a serious assault is a state that endorses vigilantism. It’s a state which gives the green light to citizens to take the law into their own hands. It’s a state which accepts mob justice and lynch mobs.

But mob justice is no justice at all. There’s a reason we have a legal system in which evidence is properly assessed and punishments meted out calmly and rationally: it’s because that’s the only way real justice is done. It’s the only way we make as certain as possible that we’re punishing the right people. It’s the only way we can apply consistent punishments that fit the crime. It’s the only way we can make the community a safer and less violent place to live.

This is what you do when you discover someone has attacked your family: you get your family to safety and call the police. If you can safely detain the person, you do that. And, if the evidence is sound and it’s clear that the person is in fact guilty of the crime, then the courts will punish that person. And don’t believe the garbage that you’re repeatedly sold by the sensationalist tabloid media – they will punish that person appropriately. They won’t take them out to an ant hill and douse them in honey and set fire ants on them before chopping them into little pieces and jumping on them and then throwing them into the ocean to be finished off by sharks, but if that’s your idea of justice then you have almost as much of a problem as the sicko in question.

Now – of course I agree that the circumstances are highly mitigating, and that the father deserves a lesser punishment for his brutal assault than if he’d just done it randomly and for no reason. But it should never have been a complete defence in which his conduct wasn’t even deemed a crime.

In Victoria, that magistrate’s direction to the jury would be wrong. We no longer have a “provocation” defence, and “what a reasonable person would have done” is not an excuse for an act of violence (unless we’re talking about self-defence, and then only to the extent it was necessary for someone’s safety). Our courts recognise that encouraging citizens to attack other citizens and telling them that it’s okay if the other person can be shown to be a bad person leads to MORE injustice. (It also results in victims being effectively put on trial.)

If Queensland is still accepting defences which boil down to “but he deserved it”, then it’s in urgent need of reform.

PS First person to post a comment along the lines of “if you don’t agree with vigilantes being permitted to run around bashing paedophiles unconscious you must luv them and want to marry them and have their babies” wins a special prize: my contempt for one entire morning.

UPDATE 4/6: Although they are whinging about this woman getting off, also in Queensland, and for a very similar reason. The inconsistency of their approaches to these cases doesn’t seem to have occurred to them.

Provocation should not be a defence. It should be a mitigating factor considered in sentencing only.

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73 responses to “The mob won’t be whinging about this man getting off

  1. If I hurt a child, I would rather receive a beating from the father than go to court. There is some honour in a beating. It is over with quickly, and some of the guilt is ameliorated. There is none in a drawn out, impersonal, process-driven court case.

    The courts are not about truth and justice anyway (I believe we had a discussion a couple of years ago about this) they are about a legal process.

    If they represented community expectations of establishing justice-and-truth, then they would allow previous convictions to be included as evidence, and introduce a third verdict of not proven (also callable as evidence).

    Lawyers would no longer be paid by the client, but by the government. Lawyers and judges would be rated by jurors and the people they represent. Lawyers who do not prepare their case properly, or collude with the opposition (it happens, especially when insurance payouts are involved) become reported and eventually disbarred. Judges who fall asleep or deliver rulings that allow a criminal to go free and commit further crimes, will also be identified and removed.

    It is time for the legal system to take responsibility for some of the power it has, and make real the aspirations to justice that some of its practitioners delude themselves of.

  2. Interesting that you’re more outraged by the punishment of the father of the victim than the non-punishment of the perpetrator of the crime… sympathise with the perpetrator, do you? The poor man…can’t fiddle with kids without copping a hiding! In my understanding of justice, the perpetrator would have received a lengthy jail sentence…but we know that there are those in the legal profession that endorse such behaviour. Didn’t you study law, Jeremy?

  3. Splatterbottom

    The pervert got more justice from the father than from the court. This is the problem. If people actually believed the court system delivered justice, they might be inclined to have faith in it. Sadly courts have more interest in rehabilitation than actual justice, by which I mean retribution and punishment.

  4. I think this is my first comment here Jeremy, so hi.

    Of course, you can sympathise with the father and put yourself in his shoes. I know I probably would have reacted the same way. That doesn’t mean I shouldn’t be punished.

    One of the problems with allowing a defence like this is trying to draw the line. What if the father was mistaken, or if the child had vindictively made up the allegations? If it was reasonable for the father to believe the allegations, then surely it would be reasonable for him to beat up the alleged perpetrator, according to the reasoning in this decision.

  5. And where do people get the idea that the courts aren’t interested in punishment?

    From the media, who consistently under-report sentences and sometimes condemn people before the facts have even come out.

    Take the case where that poor mother was assumed for days to have offed her kids, when she had done no such thing. People leap to conclusions, and innocent people get hurt when vigilantism is condoned or allowed.

  6. What should the father have done Jeremy? Sent the offender off for counselling? I’ve thought it through and whilst I’m not cheering it, I would have done the same thing as the father. I’d think you’d find most father’s would have.

  7. I know that my previous post will be rejected, due to sensitivities of the moderator. I’ll try again. Why are you attacking the state for trying to make the jury understand that there are ‘mitigating circumstances’ in the case…would you complain if a judge said the same thing to a jury when a woman killed her attacker after being raped? Surely the father was just acting as a proxy defender of his child…if the child was tough enough, and big enough, then he could have bashed the pervert himself. As he wasn’t, his dad did it for him. I have a child, Jeremy, and i’d do the same thing as that dad if anyone hurt my child…seeing as the justice system let the pervert go free!! What would you do?

  8. Well he bashed him I think the Jury should’ve returned a guilty verdict and I would expect the judge to take into consideration the extreme provocation. ie If I was the father I don’t think I could control myself and would hope for leniency, I’d plead not guilty too, why wouldn’t I if there was a chance the jury might buy it?.

  9. Well Jeremy, you must just love paedophiles and want to marry them and have their… DAMN, I see redxanth beat me to the prize.

    In terms of the issue itself… well… provocation is a defence, but not an absolute one. It’s evidence for mitigation, not of innocence. A serious assault of someone who is not a direct, immediate physical threat is still a serious assault.

  10. As Keri pointed out, the fact that people think that sentences is soft is the problem, not that they actually are soft. Because they’re not. It’s just that there’s a tabloid media trying relentlessly to scare people into thinking VIOLENCE IS RISING and COURTS ARE SOFT ON CRIME, but it’s a lie.

    SB – he received a nine month ICO, because of the bashing, and that was appealed. I don’t know what the ultimate punishment was. According to the sentencing judge, he’d have definitely received a jail sentence if not for the father’s assault.

    I agree that the violence is largely because of the feeling that courts are soft on crime – another reason why that misrepresentation is such a serious problem. I also agree that the molester should’ve received a jail sentence – which he would’ve, if not for the extra-judicial punishment by the father.

    Phill, I said in the post what the father should’ve done.

    As for redxanth – you win my contempt for the morning.

  11. “I also agree that the molester should’ve received a jail sentence – which he would’ve, if not for the extra-judicial punishment by the father”

    good point, the father must be spewing about that.

  12. “Why are you attacking the state for trying to make the jury understand that there are ‘mitigating circumstances’ in the case…”

    I’m not. Read the post again. I’m criticising the state for pretending that at mitigating factor should be a full defence.

    The punishment should certainly have been less in the circumstances than it would’ve been had there not been such extreme provocation.

    But it should not have been a full defence. The state should not be saying that violent vigilantism is acceptable.

    “I have a child, Jeremy, and i’d do the same thing as that dad if anyone hurt my child…seeing as the justice system let the pervert go free!! “

    Well, it didn’t, he received a nine month intensive corrections order, and that was appealed by the prosecution who wanted him to get more. I don’t know what the result of that appeal was, but it won’t be “letting him go free”.

    And, as I noted above, he would’ve received a jail sentence if it wasn’t for the brutal assault by the father. The father’s actions are precisely what caused him not to go to jail, not a response to it.

  13. Splatterbottom

    Jeremy: “As for redxanth – you win my contempt for the morning”

    Real contempt should be reserved for those who would not demonstrate by word and deed their obligation to protect their child.

  14. Um, how did beating the guy up and causing him not to go to prison “protect the child”?

  15. The only way you ever hope or expect a father in this situation to not take the law into his own hands is if the legal system was seen by the father as entirely credible, humane, respected, timely and sensitive.

    It it is not, at least not consistently, and not systematically.

    But, I agree that the ideal is for all transgressions to be dealt with by a justice system. Crimes need to be examined in the public gaze, and the guilty punished, so we can all be reminded of what society regards as appropriate and inappropriate.

    (An approach to achieving my first post was trying to establish. God sorry my writing circuits have been taken up with thesis modelling… it sounds horrible)

  16. SB, I think you meant to say “demonstrate their feelings that they have an obligation to protect their child”. You obviously supported lynchings in the southern USA during the 60s, after all they were just demonstrating by word and deed their obligations to protect their daughters/wives from those damn rapist negroes…

    (There we go… my first really big strawman, SB-style I feel a little teary)

  17. “The only way you ever hope or expect a father in this situation to not take the law into his own hands is if the legal system was seen by the father as entirely credible, humane, respected, timely and sensitive.”

    Another reason why the constant smear campaign against it by tabloid media organisations like News Ltd is such a serious problem.

  18. I have a couple of daughters putting myself in the father’s shoes I would probably in the heat of the moment do the same thing.

    Very grey area this one and emotion will play apart.

  19. a part not apart

  20. You would not expect to have no consequence flow from beating the person almost unconscious, though, would you?

    You’d expect that the punishment would be much less because of the circumstances, but you’d understand at the time that you were not entitled to exact your revenge through violence, wouldn’t you?

  21. Jeremy, I’m happy to earn your contempt…you’re probably a nice bloke in real life, who actually cares about society and humanity in general, as I do, but IMO, some of the stuff you come out with is tripe. The judge simply asked the jury to consider the case, and the circumstances. When women murder their abusive partner, i’m sure the jury is also told to consider the case, and the circumstances. I would be critical of the sentencing judge that thinks a beating is punishment enough…the pervert will heal in a month, but the child will remember what happened to him for the rest of his life. Where’s your compassion and indignation for the victim? Or don’t you have any?

  22. Jeremy, do you honestly think a 9 month intensive correction order is punishment enough for sexually assaulting a child in their own home?

  23. “… their own home”

    Or anywhere for that matter.

  24. “The judge simply asked the jury to consider the case, and the circumstances. “

    I don’t think you understand what you’re talking about. The jury was deciding whether the man had a full defence or not, not what punishment was appropriate. That’s a legal question. The judge told them, presumably correctly under Qld law, that the question was what would a reasonable person do in that situation.

    That should NOT be the law. That law says that some vigilantism is okay.

    In Victoria, the jury would NOT be given that direction, because it would be wrong. The issue of guilt or innocence is whether he committed the offence and whether he has a full defence. He clearly committed the offence, and “provocation” is not a defence here, as it should not be.

    In both cases, the judge would then quite properly reduce the sentence over what would ordinarily be the punishment, because of the circumstances which the court, like most of us, would understand.

    “Understanding” is not the same as “accepting and endorsing”, though.

    And stop misrepresenting the actual sentence as nothing – a nine month ICO is a real and serious punishment, even if you don’t understand what it actually involves. And he may well have got more, since the prosecution appealed.

    Compassion and indignation for the victim doesn’t require an endorsement of vigilante violence.

  25. “Jeremy, do you honestly think a 9 month intensive correction order is punishment enough for sexually assaulting a child in their own home?”

    Well, no – and that’s why it’s a pity that the father decided to give the bloke the exceptional circumstances of an extra-judicial punishment. The sentencing judge said he’d have given a lot more if not for the brutal beating. The ordinary punishment would’ve been a term of imprisonment, as it should be.

    By the way, “sexually assaulting a child” conjures up all sorts of factors that weren’t present here. Presumably you’d agree that someone who actually physically hurts a child should get a tougher sentence than one who doesn’t, as in this case. And I don’t think you understand how serious an ICO is – it’s not a “slap on the wrist”.

  26. Jeremy,
    I sense as a lawyer you face the same frustrations towards the public’s view of the judicial system that I face as a health worker listening to people complain about long waiting lists in public health services.

    From the outside looking in, it all seems so cut and dried but once you’re in the system you get to view the complexities that create the system.

    You’re a brave man taking on such questions in the public sphere. It would like me trying to defend why not everyone can be seen in the first ten minutes of arriving at Emergency at a public hospital.

  27. Another reason why the constant smear campaign against it by tabloid media organisations like News Ltd is such a serious problem.

    But if I can humbly submit that the system itself is poorly designed. Lawyers should be pressuring politicians to change it, or at least trying (as a profession) to identify how it might be changed.

    That they take the dollar that the system feeds them, but then complain it is poorly represented by the media? I think both are regrettable, but the lawyers are the most likely to bring about change, so they are the most culpable for the stories continuing to arise to be written about.

    PS My assessment of the legal system is not founded on tabloid reporting.

  28. Invig, we do pressure politicians to fix flaws in the system. I don’t agree with your proposed solutions, though.

    “If they represented community expectations of establishing justice-and-truth, then they would allow previous convictions to be included as evidence, and introduce a third verdict of not proven (also callable as evidence).”

    No, previous convictions being admitted would result in people not having fair trials, but being convicted again for matters that have been dealt with. Previous convictions ARE admissible in sentencing, but they should not be allowed to contaminate the fact-finding process.

    As for the third verdict – “guilty but not guilty” – I can’t see the point in that.

    “Lawyers would no longer be paid by the client, but by the government.”

    We have legal aid, although it is ridiculously underfunded.

    ” Lawyers and judges would be rated by jurors and the people they represent. Lawyers who do not prepare their case properly, or collude with the opposition (it happens, especially when insurance payouts are involved) become reported and eventually disbarred. Judges who fall asleep or deliver rulings that allow a criminal to go free and commit further crimes, will also be identified and removed.”

    Judges who fall asleep should be removed, yes. Incompetent lawyers are disbarred. Judges who are not psychic and administer a sentence that is appropriate in the circumstances are not responsible if a person goes out and ultimately reoffends. If you want to make sure people can’t reoffend you’d have to lock everyone up forever. This would be (a) unjust, (b) ludicrously expensive and (c) unworkable.

    I’m not sure what benefit there is to your other suggestions.

  29. Cheers, Phill.

    “It would like me trying to defend why not everyone can be seen in the first ten minutes of arriving at Emergency at a public hospital.”

    Actually, I think people should be able to be seen properly within the first ten minutes of arriving at Emergency – I think waiting lists in the Emergency department are absurd.

    But it’s not the fault of health professionals. It’s the fault of governments for not providing enough funding and training enough doctors.

  30. By previous convictions, I meant past history, including – and especially – when a case has failed to be proven, but the person was far from innocent. In other words, we need to establish character of the defendant. This concept of ‘fairness’ is different to ‘truth and justice’. Jurors need information to make an assessment. Historical information, including past brushes with the law, is entirely useful information.

    I don’t mean legal aid. I mean as in medicare for lawyers. So that being rich does not mean you get a better lawyer, necessarily. But that all lawyers get a government retainer, and then charge above and beyond that. The price is they must submit to ‘user feedback’ and other online rating. We need to give consumers the power here, rather than lawyers screwing over poor people in unfortunate (and often idiotic) situations.

    Judges may not be psychic, but their ability to judge complex situations is what we pay them for. Monitor the results of their rulings, is all i’m saying. Then we’ll be able to identify the ones with better judgement.

    As it stands, how do we know?? People are promoted on political and anecdotal grounds. At least bad engineers have the bridges fall down and bad doctors people die. We need evidence of legal practitioner’s competence just the same.

  31. We’re going a bit off-topic, but okay.

    “By previous convictions, I meant past history, including – and especially – when a case has failed to be proven, but the person was far from innocent.”

    There’s no such thing. You’re innocent until proven guilty. Criminal matters should not hinge on “balance of probabilities”, unless we want our jails 49% full of innocent people.

    “In other words, we need to establish character of the defendant.”

    For sentencing, yes. For determining whether or not he or she committed the crime, a thousand times no. Their character is irrelevant to whether there is actually evidence of them committing the crime or not.

    “This concept of ‘fairness’ is different to ‘truth and justice’. Jurors need information to make an assessment. Historical information, including past brushes with the law, is entirely useful information.”

    No, it isn’t. It is far more prejudicial than it is probative.

    “I don’t mean legal aid. I mean as in medicare for lawyers. So that being rich does not mean you get a better lawyer, necessarily. But that all lawyers get a government retainer, and then charge above and beyond that. The price is they must submit to ‘user feedback’ and other online rating. We need to give consumers the power here, rather than lawyers screwing over poor people in unfortunate (and often idiotic) situations.”

    I’m not sure what situations you’re talking about here, and I can’t see people voting for a lawyer guarantee whereby they pay towards everyone’s lawyers, rich or not.

    “Judges may not be psychic, but their ability to judge complex situations is what we pay them for. Monitor the results of their rulings, is all i’m saying. Then we’ll be able to identify the ones with better judgement.”

    We have free will. You can’t blame a judge because someone changes, or things change someone, after a sentence is complete. All a judge can do is sentence based on the evidence before him or her, and – contrary to what SB suggests – rehabilitation is a massively important part of that, if we actually want to reduce crime.

    “As it stands, how do we know?? People are promoted on political and anecdotal grounds. At least bad engineers have the bridges fall down and bad doctors people die. We need evidence of legal practitioner’s competence just the same.”

    I agree that legal practitioners should be subject to review if they are incompetent: and indeed they are subject to such review. There’s a complaint mechanism in place and negligent and corrupt lawyers lose their ticket.

    Judges, no – they should be removed for incompetence like falling asleep in cases, certainly, but not on the basis of public misperceptions about sentencing. We do not want the US system here, where innocent people go to jail because judges with high conviction rates win elections.

  32. Invig,

    Any case brought against a defendant must be decided on its own merits. You cannot convict a person for one crime on the basis that they committed a similar crime previously. There must be sufficient evidence of the actual crime alleged to convict. If evidence of previous convictions were allowed, it would increase the risks of innocent people being convicted.

    I don’t mind the idea of a “Lawyercare” system, so that there is access to justice for those that can’t afford it, but it couldn’t be open to everyone. It would no doubt be abused if it were. However your idea of clients rating lawyers is unworkable. Bad lawyers will get less work, but a system of rating is about as effective as those same systems used to rate restaurants on line. You cannot trust the results.

    And how on earth can we monitor a judges results? The purpose of the judge is to make a decision between two competing arguments. In difficult cases another judge may come to a different decision. Sure, decision regarding law are bound by case law, but decisions of fact are up to the individual judge, and it would be impossible to have any valid measurement of the correctness of those decisions. Anyway, there are appeal processes to take care of mistakes.

    I can assure you, that if a legal practitioner is incompetent, he/she will either get no clients or will be struck off eventually.

  33. “Actually, I think people should be able to be seen properly within the first ten minutes of arriving at Emergency”

    Way off topic, I know, but that would create chaos and anarchy and bring the health system to its knees in a few hours. Utterly impossible.

  34. Thanks for allowing the diversion…

    There’s no such thing.

    In Scotland there is.

    49% full of innocent people Well, no. The person is ‘not proven’. They still go free, but a record is kept that may be used in future case. And perhaps retry the original case? I don’t know.

    more prejudicial than it is probative How is character prejudicial? A bad person will tend to do bad things. It is highly relevant. And, as you say, we need rehabilitation – of just such people. Or else punishment – especially in the case of sexual criminals. They are difficult to prove, and so history is very important.

    I can’t see people voting for a lawyer guarantee Well, maybe not. But they like MySchool and they like Medicare, so why not? In any case, sometimes a systemic solution is not obviously desirable. Doesn’t make it any less important to pursue.

    We have free will. You can’t blame a judge because someone changes, or things change someone, after a sentence is complete.
    Of course, but that is beauty of statistics. They tell the story behind the noise (of free will, in this case). And it is not based upon conviction rates – but rather recidivism.

    There’s a complaint mechanism in place and negligent and corrupt lawyers lose their ticket.
    Yes, but how well does it target the over-billers and the less-competent? The smaller offences that smart lawyers know they can get away with.

  35. Why would people go to GP’s and pay a small gap if they can go to Emergency and be seen for free in 10 minutes? One of the main problems with Emergency waits is caused by people attending for non-emergeny procedures and problems.

    The key to minimising waits in emergency is keeping people out that are not there for emergency procedures (ie, coughs, colds, gastro complaints, sprains, etc)

    What is needed is better primary and public health care systems outside of hospitals. Ie; more accessible GP’s, Nurse Practitioners and Allied Health professionals .

  36. “Well, no. The person is ‘not proven’. They still go free, but a record is kept that may be used in future case. And perhaps retry the original case? I don’t know.”

    That’s a terrible idea. If there’s not enough evidence that a person has committed an offence, then that’s it. They’re innocent. That’s the end of the matter. They don’t have a big question mark over their head for the rest of their days so that if something happens in their vicinity they’re automatically blamed.

    “How is character prejudicial? A bad person will tend to do bad things. It is highly relevant.”

    Your second sentence highlights the problem. A bad person may “tend” to do bad things. It doesn’t mean they’ve done this particular “bad thing”. If you accept that evidence, you will have more innocent people in jail.

    “Of course, but that is beauty of statistics. They tell the story behind the noise (of free will, in this case). And it is not based upon conviction rates – but rather recidivism.”

    No, they don’t. There are a whole lot of other factors that impact on sentences – changes in the law, different areas, population factors, countless things. You cannot meaningfully distinguish between judges in that fashion. And judges shouldn’t be approaching a case thinking “ooh, I’ve got to be tougher on this one to get my average up” – they should be judging each case on its merits.

    “Yes, but how well does it target the over-billers and the less-competent? The smaller offences that smart lawyers know they can get away with.”

    By “over-billers” do you mean practitioners who lie on their bills, or practitioners who just charge too much? The latter will just lose work. The former could be subject to disciplinary proceedings if it can be proven.

  37. Chris,

    Any case brought against a defendant must be decided on its own merits. This is a naive perspective. Character is a strong indicator of likely action in any given circumstance. Why else do they cross-examine and delve into the sexual histories of rape victims. And why is this ok and not for the perpetrators?

    It would no doubt be abused if it were A system can be designed to offset such potential abuses.

    your idea of clients rating lawyers is unworkable. Again, its a question of how the system is designed. There will be ways and means.

    And how on earth can we monitor a judges results As I said before, recitivism rates. Then maybe the judge can choose between different offender programs as well? Give him an incentive to be across the entire punishment-and-rehabilitation system.

    Anyway, there are appeal processes to take care of mistakes.These add to the expense and trauma suffered by everyone involved. It is far, far better to get it right first time.

    if a legal practitioner is incompetent, he/she will either get no clients or will be struck off eventually. You’re saying ‘trust us to deal with it’. ‘Eventually’. I’m sorry but as a non-lawyer I do not find that comforting.

  38. ‘Why would people go to GP’s and pay a small gap if they can go to Emergency and be seen for free in 10 minutes? One of the main problems with Emergency waits is caused by people attending for non-emergeny procedures and problems. “

    Well, I agree with your subsequent point:

    “The key to minimising waits in emergency is keeping people out that are not there for emergency procedures (ie, coughs, colds, gastro complaints, sprains, etc)

    What is needed is better primary and public health care systems outside of hospitals. Ie; more accessible GP’s, Nurse Practitioners and Allied Health professionals .”

    And there shouldn’t be a “gap” for going to the GP. It should be free and publicly-funded. We’re a first world country – we should have proper universal healthcare, and private health insurance should be a farcical luxury that nobody needs.

    That’s not to say that waiting periods in emergency departments are not unacceptable – they are. But I agree that better public funding of other health services like GPs would be a good start in tackling it.

  39. That’s a terrible idea. If there’s not enough evidence that a person has committed an offence, then that’s it. They’re innocent. That’s the end of the matter. They don’t have a big question mark over their head for the rest of their days so that if something happens in their vicinity they’re automatically blamed.

    I’m sorry Jeremy, but in the real world, this is how we all operate. Reality is too complex, and crimes too difficult to prove, for it to not be worth bringing in behaviour history.

    How many rape cases are successful? 5%?

    How many are never brought to the police, or to court, for that reason.

    It is simply not good enough.

    A theoretical notion of ‘fairness’ MUST be put aside for a reality of incredible suffering.

    Believe me, I’ve just been through 5 days of feminist lambasting on the subject.

  40. Invig, I think your other points were addressed in my previous comments, but I’ll respond to this one:

    “This is a naive perspective. Character is a strong indicator of likely action in any given circumstance. Why else do they cross-examine and delve into the sexual histories of rape victims. And why is this ok and not for the perpetrators?”

    They shouldn’t be permitted to do this, I agree. In terms of a witness’s credibility, prior inconsistent statements are relevant, but their sexual history should never be on trial.

    The fundamental point is that we developed the rule that prior history is only relevant for sentencing because it was apparent that juries and judges were much more likely to convict people who turn out to be innocent if they have a prior history that seems relevant. The reason it’s more prejudicial than probative is that it is used to fill in gaps in the evidence which are there because the accused didn’t actually commit the offence.

    And if you don’t mind innocent people going to jail, think of it this way – when an innocent person goes to jail, a guilty person gets off scot-free.

  41. “How many rape cases are successful? 5%?

    How many are never brought to the police, or to court, for that reason.

    It is simply not good enough.”

    Isn’t it? I suspect the reason for a low success rate in rape prosecutions (if indeed that is the case, your figure is just pulled out of the air) is that by nature, they tend to be one person’s word against another’s. It’s difficult to get “beyond reasonable doubt” in those circumstances.

    That’s unfortunate, but I’m not sure the cause of justice will be served by putting more innocent people in jail.

  42. There are plenty of GP’s around that bulk bill (my local does for all pensioners, unemployed and under 18’s). I don’t mind paying a small gap so I have reasonably unfettered access to a great GP.

    I’ll leave you to argue law now. Good luck with it

    Cheers

  43. Invig,

    It is not naive to decide a case on its merits only. This is the only way to ensure a trial which is as fair as possible. The prosecution must be able to prove its case on the facts, otherwise we will have too many cases of convictions of innocent people.

    And I don’t understand how recidivism rates are a reflection on the quality of a judge. So many other factors cause recidivism and we certainly can’t blame judges if an offender commits another offence, unless you can show it was a case of gross negligence (which an appeal by the prosecution could take care of).

    If you can design a system that fairly rates the quality of lawyers, then I’d be happy to look at it. But I can’t think of any profession, outside of sports perhaps, where such a system is in place.

    As to lawyers policing lawyers? Well, you’ve got a point there. I think the profession is full of poor lawyers and over chargers. I wouldn’t mind seeing an independent body investigating lawyers and also a good look at how legal costs are charged. But as I said, a system of user ratings is open to abuse. It is quite possible that a client would rate a lawyer poorly simply because they had a bad case, or didn’t like the advice they got, rather than based on the quality of the advice or representation they got.

  44. The reason it’s more prejudicial than probative is that it is used to fill in gaps in the evidence which are there because the accused didn’t actually commit the offence.
    and
    when an innocent person goes to jail, a guilty person gets off scot-free.

    Which is worse than the 95% (or more) of rapists getting off now?

    Ok, I understand the risk. But surely it is possible to present the evidence divorced from past history.

    You can say that ‘John was in the drawing room with the revolver’

    and you can say ‘Last year John’s finger prints were on a bloody knife in the house where Sue was murdered, but it there wasn’t enough evidence to convict’

    Surely a jury can differentiate between the knife and the revolver? One happened a year ago? They are different cases. The only cross-over is in the character. People are accustomed to assessing character. I think you underestimate them.

    Only some people will kill, or rape, or steal or bash. If they have that tendency, they generally do it more than once. This is important information.

    but their sexual history should never be on trial. No, but if they have cried rape on multiple occasions (which does happen), and it was shown to be a lie, that is relevant. Apart from that, every woman must give consent. No matter their promiscuity.

  45. It is not naive to decide a case on its merits only. This is the only way to ensure a trial which is as fair as possible. The prosecution must be able to prove its case on the facts, otherwise we will have too many cases of convictions of innocent people.

    And I don’t understand how recidivism rates are a reflection on the quality of a judge. Ask yourself what a judge ‘produces’. Then think about how to measure it. You are obviously more experienced with the legal system than I am, so I would be interested to see what you come up with.
    This statement is a series of assumptions. That is all I can say. I can’t argue against assumptions without finding research data or inconvertible logic, and I have neither. However if I can put it that these are far from truths. The legal system is a mechanism made by man. If you want an accurate reflection of human systems, look at tribal structures. They tell you a lot about what works – cause if they didn’t, the tribe would have died out.

    If you can design a system that fairly rates the quality of lawyers, then I’d be happy to look at it. But I can’t think of any profession, outside of sports perhaps, where such a system is in place. Well I’ve got your blog. If I get time at some point, maybe we can resume this conversation? I’ll try to answer the question then.

    It is quite possible that a client would rate a lawyer poorly simply because they had a bad case, or didn’t like the advice they got, rather than based on the quality of the advice or representation they got. This is true, and you need to design around it.

  46. “Which is worse than the 95% (or more) of rapists getting off now?”

    Again, you’re just making that number up.

    But yes, innocent people going to jail is worse than guilty people being acquitted.

    “Surely a jury can differentiate between the knife and the revolver? One happened a year ago? They are different cases. The only cross-over is in the character. People are accustomed to assessing character. I think you underestimate them.”

    People are accustomed to making assumptions based on character. The problem is that those assumptions are also often wrong.

    The logic does not follow:
    1. defendant did something like this before
    2. this thing happened near the defendant
    3. therefore it was probably the defendant.

    Hell, if that were the process all your real criminal would need to do to get away with a crime is stage it near the residence of someone who’s previously committed such a crime, and they’re almost certain to get away with it.

    It’s just a bad idea. We used to do it, and we developed the rule that we now follow because the alternative led to too many innocent people being punished for crimes they didn’t actually commit.

    “Only some people will kill, or rape, or steal or bash. If they have that tendency, they generally do it more than once. This is important information.”

    No, it isn’t. Because you’ll assume that therefore they’re the person who did that in this particular case, even if they didn’t.

    “No, but if they have cried rape on multiple occasions (which does happen), and it was shown to be a lie, that is relevant.”

    I agree. Previous lying is relevant to whether their evidence should be believed. That’s why you can cross-examine a defendant to try to show that they’re a liar – not because it makes it more likely they committed the offence, but because it makes their evidence less credible.

  47. It is not naive to decide a case on its merits only. This is the only way to ensure a trial which is as fair as possible. The prosecution must be able to prove its case on the facts, otherwise we will have too many cases of convictions of innocent people.
    This statement is a series of assumptions. That is all I can say. I can’t argue against assumptions without finding research data or inconvertible logic, and I have neither. However if I can put it that these are far from truths. The legal system is a mechanism made by man. If you want an accurate reflection of human systems, look at tribal structures. They tell you a lot about what works – cause if they didn’t, the tribe would have died out.

    And I don’t understand how recidivism rates are a reflection on the quality of a judge. Ask yourself what a judge ‘produces’. Then think about how to measure it. You are obviously more experienced with the legal system than I am, so I would be interested to see what you come up with.

    If you can design a system that fairly rates the quality of lawyers, then I’d be happy to look at it. But I can’t think of any profession, outside of sports perhaps, where such a system is in place. Well I’ve got your blog. If I get time at some point, maybe we can resume this conversation? I’ll try to answer the question then.

    It is quite possible that a client would rate a lawyer poorly simply because they had a bad case, or didn’t like the advice they got, rather than based on the quality of the advice or representation they got. This is true, and you need to design around it.

  48. Ok, the link to the claim by my feminist friend is here

    I can ask for evidence, if you like. She’s in the UK so it might take till tomorrow.

  49. No, it isn’t. Because you’ll assume that therefore they’re the person who did that in this particular case, even if they didn’t.

    While I agree that innocent people going to gaol, or being branded a rapist, is terrible – it is not the only consideration.

    The other important stuff is credible, humane, respected, timely and sensitive, as you agreed with earlier.

    To say that this train of logic is inevitable;

    The logic does not follow:
    1. defendant did something like this before
    2. this thing happened near the defendant
    3. therefore it was probably the defendant.

    is completely misunderstanding the nature of systemic risks.

    Systems must be designed to achieve a number of outcomes. And to deal with multiple, inherent weaknesses. Conflating proximity with guilt is a simplistic and easily-rectified fallacy.

    No, it isn’t. Because you’ll assume that therefore they’re the person who did that in this particular case, even if they didn’t.

    You seem to be working on the assumption that people are very, very stupid – and you lawyers must help us to not convict people because of that stupidity. That is very arrogant.

    It’s just a bad idea. We used to do it, and we developed the rule that we now follow because the alternative led to too many innocent people being punished for crimes they didn’t actually commit.

    I would really appreciate some references here. When did we do it? What were the particulars of the system? For my own education, if you don’t mind.

  50. Sorry, you’d have to look up when precisely we implemented the rule – in fact, it was probably the English who did. But the fact that prior history evidence is more prejudicial than probative in terms of determining guilt for a specific defence was the reason. It’s such a basic, well-established principle that it’s difficult to tell you where to begin looking it up. I’m sure you could google some material on it fairly easily, though.

    As for innocent people in jail – it’s even a biblical principle that it’s better that ten guilty men go free than one innocent man be punished. The idea is that imprisoning innocent people is actually adding a second crime, a second attack on the innocent, to the original. That’s much, much worse than doing nothing. That’s why we have the principle of criminal guilt being “beyond all reasonable doubt”.

  51. BTW checking out that postsecret thread I doubt the woman who gave you that 5% statistic will back it up.

    That’s a thread one ought to be very wary of wading into!

  52. The idea is that imprisoning innocent people is actually adding a second crime, a second attack on the innocent, to the original. That’s much, much worse than doing nothing.

    True, but establishing character can also work in defence of the innocent. But the guilty walking free is a second attack on the victim (and on the good work of the police and investment by the taxpayer bringing them to trial), not to mention any further crimes they might perpetrate.

    I just think that if someone is accused of a serious crime, all possible evidence should be called. If there have been previous convictions ( or not provens), and they can chart a course showing redemption and change, then that should also occur. Knowing the person is more valuable an indicator than if some obscure or fallible piece of evidence (typeface or phone record or witness memory). How much time is spent in minute trawling of evidence surrounding the crime when it might just as easily be dismissed on a chance technicality, or else stand up because the police planted it? It is an unreliable system.

    Just as you say with that thread, you assess the character of the people involved and so decide to steer clear. And yes, it was a traumatic experience, and perhaps next time I will! Although, by the same token, there were lessons I had to learn, so that’s all to the good…

  53. “all possible evidence should be called.”

    As to the incident in question, sure.

    As to the accused’s character – no. That does not tell you whether this offence was committed by them or not.

    Including prior history in determining guilt would be MORE unreliable than what we have now.

  54. Well it comes down to a that. I’m happy with that outcome, I believe I can disprove that with my research.

    I’ll send it to you in a few weeks.

  55. zaratoothbrush

    Ok, so let’s say your son has been attacked by a pedophile. So, he’s scared, he’s crying, shaking, sweating, and not sleeping. Night after night. He’s thinking the world is a terrible place. He really, really needs someone, probably a man – it would mean more that way, to tell him that men can be good, men can be kind, men can be respectful and loving – that there’s such a thing as human decency in the world. This is what he needs from protection from: his own thoughts and nightmares. His suffering. He’s going to need this sort of love for a long time.

    And yet you wouldn’t be there to do that. You would turn your back on the poor kid, and go out in the night to beat some sick, sick cripple to within an inch of his life. And you would call that ‘protecting your child’. I mean, you haven’t said a word about what it would be like for him.

    What a sick, stupid, medieval fucking peasant you are.

    Leave the prosecution of criminals to the criminal justice system. It’s been protecting the whole of society from medieval peasants for centuries.

  56. And here’s a link to that figure, thanks to my friend.

  57. “Leave the prosecution of criminals to the criminal justice system. It’s been protecting the whole of society from medieval peasants for centuries.”

    Of course it has, and fairy’s live at the bottom of the garden.

  58. Invig, if you read the article, that figure is an indictment on the metropolitan police in London, not our courts.

    Obviously reform is needed there, and also here if the figure is in any way similar. But that reform should not involve throwing out the principle of innocent until proven guilty, or that all people are entitled to be tried on the evidence for a specific charge, not their past history.

  59. Only 5.7% of rape cases reported to police lead to a conviction and research shows that attrition – or cases dropping out – happens at every stage from initial complaint to trial. But Yates said the biggest attrition rate was with the initial police investigation.

    There’s three other articles too, reflecting the same stuff. 1, or this one from Scotland, where the rate is 3.7% – of conviction from reported cases.

    And I understand your position Jeremy. I have work to do to prepare my case… I may even delve into a few feminist blogs and brave the terrifying waters again lol

  60. zaratoothbrush

    Of course it has, and fairy’s [sic] live at the bottom of the garden.

    Gee, thanks for stopping by and not listening.

  61. Splatterbottom

    Sadly we don’t have a criminal justice system these days. It is more of a crime management system, as befits our increasingly dystopian society. Crimes are recorded. Few of the perpetrators are brought to court, and even then the results rarely amount to justice. And heaven help any citizen who tries to defend their own family or property.

    The crime management system is a wonderful place for the lawyers, judges and sundry counsellors and policy advisers who grow fat on its largesse. It is a wanker’s paradise where the pulling never stops, the stroking never ceases and the insiders bask in the warm glow of their own hubris, casting themselves as saviours of society. Christine Nixon is a classic case in point – no care and no responsibility.

    All too often these leeches put victims through the wringer for little tangible outcome. It is a foolhardy parent who abandons their children to that system when a simpler more effective alternative is at hand. No one is suggesting that this is a substitute for proper parenting, but sometimes it is a useful adjunct.

  62. How delightfully insulting, ignorant and destructive, SB.

  63. That’s some kind of wonderful alternative reality you live in SB.

    Tell me, what else is there in this place where all the crooks are caught? Do the rivers flow with milk and honey?

  64. Splatterbottom

    Nawagadj, I was ranting at the current system, not describing a better alternative. I don’t long for some idyllic past where justice was handled by the citizens who raise the hue and cry and administer justice on the spot. I accept that vigilantism is generally not a good idea.

  65. “What a sick, stupid, medieval fucking peasant you are”.

    Wow, and I thought some of us were having a grown up and robust debate…

    “Well said”, Jeremy? Really?

  66. Well, maybe not that particular remark, but the reminder that demonstrating violence in front of a child is a way of further traumatising them was well made.

  67. So you kind of invite and respond to reasonable commentary, which we partake in and then one of your mates (I presume) labels anyone with a differing perspective a “sick stupid medieval peasant” and that’s kind of cool hey?

  68. Sorry, I made a mistake.

    It was “sick, stupid, medieval fucking peasant”.

    My apologies Jeremy.

  69. “Gee, thanks for stopping by and not listening.”

    The pleasure was all mine.Oh by the way I did listen, but the noise was covered up by a lot of static.There may be a problem with the frequency of the signal.

  70. Phill, I don’t know zara, and it was indeed robust language but – have you seen anything written here by SB? I let the discussion here be fairly frank and blunt – I will moderate when someone is abusing the system or harassing someone else, but otherwise I tend to let it go.

    And I can understand her anger at the endorsement of mob justice: I presumed the “sick, stupid, medieval fucking peasant” remark was aimed at those who would actually enact violence on another human being, not just those who simply have a “differing perspective”.

  71. zaratoothbrush

    I may be mistaken, but I thought I had actually constructed an argument that made it plain why I thought that this kind of abuse was warranted. That is to say, I wasn’t just gratuitously dissing someone. Maybe you noticed that bit: what did you think of it?

    In any case, my comment was more a hypothetical response to the offender who”s the topic of Jeremy”s post, and not anyone here in particular.

    I can understand her anger

    The correct pronoun to use here is “his” 🙂 My nick is a play on a famous work by a certain German philosopher. 

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