I was absolutely horrified to wake up this morning to hear that Parliament had passed the Criminal Procedure Bill last night.

While there were some good things in the Bill (as there usually are) such as the district courts being able to hear P cases, I am most appalled at the attack on double jeopardy; the rule that a defendant cannot be tried more than once on the same set of facts (note: we are not talking new facts, new evidence). This law was laid down in section 26 of the NZ Bill of Rights Act:

"No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again."

The doctrines autrefois acquit and autrefois convict (the defendant has already been acquitted or convicted on these facts) have long been established within common law and find their place in human rights charters around the world so for the government to erode them in this manner is yet another example of their disregard for rights and freedoms.

In the system of law we use in New Zealand a person is innocent until proven guilty. This system means inevitably that sometimes the guilty will get off and the innocent will be convicted. Whilst no one likes or condones these negative connotations the alternative is worse because the solution to ensuring that the guilty always get convicted is to imprison every accused and likewise, the solution to ensuring the innocent never get convicted is to never convict anyone. The system is balanced to make it difficult to convict because it is generally deemed worse to send an innocent person to jail than to fail to punish the guilty.

So we are left having to accept that once a court has heard a case, weighed the evidence and ruled, that's that. Allowing the state to keep having a go because despite the court's assessment, the state "know" this person is guilty (or worse because of trial by media, the public "know") is to give the state far too much power and to give society far too much uncertainty in the justice system. Whilst it may succeed in increasing the chances of nailing the guilty it equally runs the risk of allowing the state to run trial after trial after trial with its vast resources against the innocent.

Labour undid hundreds of years of jurisprudence on human rights formulated by far greater legal and ethical minds than any of them possess in one sitting last night. Just remember that next time you decide that someone guilty got off after listening to the 8 second soundbite on the news or reading the 600 word article in the Herald; if a judge and 12 of your peers who heard all of the evidence, got to see the body-language and hear the tone of voice of the witnesses ruled the other way, maybe they were in a better position to assess the case. If the police failed to build their case then tough. If anything, knowing they can have a second crack will encourage them proceed with a lower standard of evidence.

Of course with the passage of this Bill the government have not completely removed Double Jeopardy but have only removed it in certain circumstances which the Herald reports as:

"when compelling evidence has been presented that is likely to lead to conviction, and when an acquittal is found to have been tainted."

However, the common law already allowed this following Connelly v DPP [1964] AC 1254, which allowed exceptions on the grounds of special circumstances such as so called tainted trials and new evidence but this law goes further than that.

When you put together:

The Doonegate affair
The repeat failure to rosecute politicians who commit crimes
The abolition of the Privy Council replaced with a unilateral state appointment of judges
The passing of the Terrorism Suppression Act
The Electoral Finance Act
The illegitamcy of retroactive legislation
The placing of what consistutes reaonable force in the hands of the police rather than a court
The personal use of police resources
The public commitment to marginalise critical viewpoints from society
The increased presence of trial by media
The increased growth and intrusion of the state into daily life
(and probably more than I can think of just now)

alongside a series of reforms, the common thread of which makes it easier for the state to successfully prosecute we realise just how scary New Zealand has become in the few short years of this Labour government.

Madeleine

UPDATE:

I discovered on reading Don't Vote Labour "The bill passed its third reading 108-11, with the Greens, the Maori Party and independent MP Gordon Copeland opposing it."

While I am not surprised to find myself in the same company as the Greens and the Maori Party on this one as the Greens do occaisionaly stand on the right side of these types of ethical issues (though often the reasons they give are completely bizarre) and the Maori Party I have a lot of time for on some issues of this nature such as the Seabed and Foreshore, but what was with ACT voting for it?