Stephen Franks on Our Sick Justice System
Temporary ACT non MP, Stephen Franks is that rarest of beasts-a no bullshit lawyer. Here is an excerpt from his guest column in the latest Heather Roy's Diary.
"
So why did I read enough to know the details of these cases? I guess I'm a bit sensitive at the moment. I've been wondering how I'd excuse the law to Tai Hobson if he asked. Tai got the result of his appeal to the Court of Appeal last week. It rated a few paragraphs in the paper too.
Tai sued the Department of Corrections as a matter of principle, to get someone to accept responsibility for not enforcing parole conditions. Tai's wife Mary was bludgeoned to death in the Panmure RSA. Career criminal William Bell had worked with her on parole. Corrections had not been checking where he lived and worked. They didn’t warn anyone of his terrible record or worry about the vulnerability of a liquor business to a robber.
Fresh victims to the William Bells of New Zealand are utterly foreseeable. Just under 80% of them are reconvicted within two years of release on parole. A demoralised Probation Service often does not even prosecute for clear breaches of parole. They can't stomach the waste of time. The last figures I saw for recall of prisoners who have breached parole was 7%. That is not 7% of parolees. That is 7% of parole breachers.
So shouldn’t Tai’s claim have been a no brainer for the Court of Appeal? The court accepted that the RSA would be unlikely to have hired Bell if it had been warned of his history.
Yet the claim was tossed out. So was the claim of Susan Couch, permanently injured by Bell. Why?
Because though Bell posed a risk, it was to everyone. There was not enough reason to foresee that Mary and Susan specifically would be victims. Because “a more rigorous approach… to supervision… would not necessarily have prevented Bell offending”. And because “if the Department had given those warnings “he would presumably have remained unemployed. If …(as seems likely) a parolee’s prospects of re-offending are best reduced by encouraging him or her into employment, it would seem contrary to the public interest to require the Department (on pain of being held liable for damages in negligence) to act in a way which limits the prospects of a parolee obtaining employment”
“The imposition of a duty of care” would make probation officers over-cautious and lead to more re-offending “from the parolees’ prospects of successful rehabilitation being compromised”.
So there you have it. Make sure the innocent can’t know enough to protect themselves. They too must serve the disproven theory that parole reduces re-offending.
This from the same Court that 5 months ago increased the compensation for the prison scum who complained that their human rights were breached by a too tough regime.
As a lawyer I can follow the logic that lead the courts to these results. And as a lawyer I’m ashamed that they have not apologised deeply for the resulting hypocrisy in the law, every time some morally innocent employer gets slammed because he didn’t cover off a risk. They are judged harshly.
Meanwhile the anointed in power go scot free for the absolutely predictable harm from releasing these human beasts. We’re told that all those preventable bashings, robberies rapes and murders are essential. They’re innocent sacrifices to the mad theory that if we are nice enough for long enough to criminals one day they might be nice back."
New Zeal it has always been my contention that a conviction should be a matter of public record, available for all to access. A real Justice Department should work primarily to protect the pubic, not to indulge in social experiments based on socialist principles.
Stephen Franks has just got to be back in Parliament at the next election. Minister of Justice, preferably.
"
So why did I read enough to know the details of these cases? I guess I'm a bit sensitive at the moment. I've been wondering how I'd excuse the law to Tai Hobson if he asked. Tai got the result of his appeal to the Court of Appeal last week. It rated a few paragraphs in the paper too.
Tai sued the Department of Corrections as a matter of principle, to get someone to accept responsibility for not enforcing parole conditions. Tai's wife Mary was bludgeoned to death in the Panmure RSA. Career criminal William Bell had worked with her on parole. Corrections had not been checking where he lived and worked. They didn’t warn anyone of his terrible record or worry about the vulnerability of a liquor business to a robber.
Fresh victims to the William Bells of New Zealand are utterly foreseeable. Just under 80% of them are reconvicted within two years of release on parole. A demoralised Probation Service often does not even prosecute for clear breaches of parole. They can't stomach the waste of time. The last figures I saw for recall of prisoners who have breached parole was 7%. That is not 7% of parolees. That is 7% of parole breachers.
So shouldn’t Tai’s claim have been a no brainer for the Court of Appeal? The court accepted that the RSA would be unlikely to have hired Bell if it had been warned of his history.
Yet the claim was tossed out. So was the claim of Susan Couch, permanently injured by Bell. Why?
Because though Bell posed a risk, it was to everyone. There was not enough reason to foresee that Mary and Susan specifically would be victims. Because “a more rigorous approach… to supervision… would not necessarily have prevented Bell offending”. And because “if the Department had given those warnings “he would presumably have remained unemployed. If …(as seems likely) a parolee’s prospects of re-offending are best reduced by encouraging him or her into employment, it would seem contrary to the public interest to require the Department (on pain of being held liable for damages in negligence) to act in a way which limits the prospects of a parolee obtaining employment”
“The imposition of a duty of care” would make probation officers over-cautious and lead to more re-offending “from the parolees’ prospects of successful rehabilitation being compromised”.
So there you have it. Make sure the innocent can’t know enough to protect themselves. They too must serve the disproven theory that parole reduces re-offending.
This from the same Court that 5 months ago increased the compensation for the prison scum who complained that their human rights were breached by a too tough regime.
As a lawyer I can follow the logic that lead the courts to these results. And as a lawyer I’m ashamed that they have not apologised deeply for the resulting hypocrisy in the law, every time some morally innocent employer gets slammed because he didn’t cover off a risk. They are judged harshly.
Meanwhile the anointed in power go scot free for the absolutely predictable harm from releasing these human beasts. We’re told that all those preventable bashings, robberies rapes and murders are essential. They’re innocent sacrifices to the mad theory that if we are nice enough for long enough to criminals one day they might be nice back."
New Zeal it has always been my contention that a conviction should be a matter of public record, available for all to access. A real Justice Department should work primarily to protect the pubic, not to indulge in social experiments based on socialist principles.
Stephen Franks has just got to be back in Parliament at the next election. Minister of Justice, preferably.
posted by Trevor Loudon at
6/02/2006 12:38:00 PM
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