Innocents in jeopardy
There’s a venerable principle of criminal law that seems to be turning on its head in Western democracies, and a number of human rights along with it.
The principal begins with an acceptance of the fact that no system of criminal justice will ever be inerrant. There will always be wrongful convictions and wrongful acquittals. But it’s deemed more offensive to notions of natural justice to punish someone innocent than it is to let a guilty person walk free.
Several human rights follow from this position — the presumption of innocence, the right of appeal, the double jeopardy defence, for instance — in an effort to minimise the chances of convicting an innocent person. Where miscarriages of justice do none the less occur, there is a further right to compensation.
It seems to me that we are now more averse to the possibility of guilty persons remaining at liberty than we are troubled by the possibility of imprisoning innocents. This is made explicit in the recent security laws passed in Australia whereby non-suspects can be arrested and detained incommunicado — effectively disappeared — if they are thought to have information relating to terrorist activities. Others, meanwhile, believe it would be okay to torture them for that information.
This disturbing shift in values and practice is, I expect, a post-9/11 phenomenon. And the reason for it is probably fear that one guilty person slipping through the net has the potential to do great harm to many (innocents). While that may be true, we are made no safer by mistakenly convicting innocent people if the search for the real villains is thereby called off, as Brendan Kilty describes occurring in the fight against terrorism in Northern Ireland. We all benefit from fair trials, due process and the highest possible chance of a correct verdict.
Let us not lose our moral indignation at the injustice done by punishing innocent people. May we not be willing to compromise all principles, all ethics, all rights, in an effort to save our skins. Australian moral philosopher Raimond Gaita reflects on a hypothetical "someone who lived as though every principle is negotiable when his life is at risk." He concludes that, "Such a life is not worthy of a human being."
[…] These high-profile death sentences have been widely condemned, including by the European Union, Russia, British PM Tony Blair, Italian PM Romano Prodi and the Vatican. Amnesty International and the UN have also criticised the sentences, in part because of the shortcomings of the trial. Since no justice system is ever perfect, and death is irrevocable, capital punishment can never be justified. A desire for justice is laudable, but risking the lives of innocents is not, and that is why fair trials principles are so important. "Every accused has a right to a fair trial," Amnesty reminds us, "whatever the magnitude of the charge against them." […]