ESSAY -  GUEST COLUMNIST- PHILIP ATKINSON                                                                                                   PART 1

THE LAW - FROM PROTECTOR TO PERSECUTOR

Every weekend during the summer I used to drive my four children to the beach. Naturally we journeyed with all the windows open to offset the Queensland summer heat. The stream of fresh air created by the motion of the car, cooled and refreshed the passengers. Otherwise, without air-conditioning, the car would have quickly become an oven.

As my children matured this arrangement became less satisfying. My eldest daughter became a petulant and perverse teenager, who began to make family life a misery. She started to demand we keep the car windows shut to stop the wind disturbing her hair. And when this absurd request was ignored she sulked. Upon arrival at the beach Ruth would refuse to leave the vehicle and instead insisted upon moping in the back seat-all day. This upset the other children who began to question the need for adequate ventilation in the car. Of course the sensible parents ignored their daughter's tantrums, and safe-guarded the family interests.

Succumbing to the odious dictates of the girl would have been like submitting to any other blackmail. The initial demand would have merely been the first of a series. Ruth would have become a tyrant, indulging her whims at the family expense. It would have been an injustice to reward this anti-social behaviour with anything but contempt.

It is clear that the legal community has taken the opposite attitude, if an individual takes exception to general behaviour then public behaviour must be amended. If someone objects to other staff smoking, then smoking has to be forbidden for all staff. Naturally, having set this precedent, they have unleashed a barrage of similar insane claims. We can no longer smoke at work, or when we travel, or in a growing list of venues. And this is just the beginning, for we are going to be subject to the caprice of every malcontent.

Every social misfit must now feel encouraged to tyrannise society. By successfully suing authority they can indulge their foibles and win a large financial reward. The only requirement is to discover a medical condition that can be blamed upon someone else, then enlist the help of the legal profession. The disease of Asthma (or the material Asbestos ) seems ideal as its applications are almost inexhaustible. Smoke, perfume, fumes, dust, pollen can provide an enterprising barrister with a job for life. Our justice corporation no longer protects society from cranks, but the reverse.

This inversion is a contradiction of the function of the law. The legal code is designed to reflect communal morality, not to dictate behaviour. I trust my work mates not to steal my wallet from an unattended desk, not from fear of the police, but because they respect my property. It is not the threat of prison that keeps citizens lawful, but conscience. Law enforcement is ensured not by uniformed officers, but by upbringing that teaches common values.

Penalties imposed by the courts are not to enforce correct behaviour by acting as a public threat, but to satisfy common notions of justice. Criminals are fined, imprisoned and executed because citizens believe that is what they deserve. Flogging was not meant to show someone the error of their ways, but to advertise the contempt the community felt towards a particular act. Nor was the enforced penalty meant to atone for the crime, for the criminal, if not executed, was considered henceforth as someone who could not be trusted.

The courts are the servants of the people, sanctioned to publicly advertise accepted notions of justice. Once the courts have to employ officers to enforce mass compliance, they are no longer servants but masters. Such official compulsion is tyranny, whose application creates righteous indignation. This leads to antipathy towards the judiciary, contempt for the law and marks a reversal of the function of the courts.

The prohibition of alcohol in the USA during the 1930's was a graphic demonstration of this effect. Public wowserism was allowed to dictate laws that forbid the use of alcoholic refreshment. The result was a corrupt and incompetent administration, an explosion in crime creating powerful outlaws like Al Capone, and an increase in imbibing. A source of state revenue was lost, along with the control and scrutiny of the liquid being consumed by the public.

Legislation purporting to improve public health and morality had the disastrously opposite effect, and achieved at increased cost to the taxpayers. The impact was so clear that the community quickly repealed the offending acts. But the lesson was ignored that the law cannot dictate, but only reflect, public morals.

Despite the awful example of prohibition, we are determined to repeat the effect. Popular anxieties about the recreational use of some substances have been allowed to infect legal process, and exactly the same result obtained. Administrations throughout the world have become corrupted by the effect of laws proscribing drug use. There has been an explosion in crime generated by consumer and merchant of the illicit product. Traffickers have become ever-more powerful, even challenging governments in their access to money and power. Trapped between their habit and the cost of the drugs, addicts are forced into crime.

Repealing the drug laws would produce immediate and significant community rewards. There would be a dramatic drop in petty crime, police corruption, the number of criminals, the load on the courts, the load on the prisons, and the financial cost to the country. Failure to take this step confirms the dominance of public prejudice in the face of the evidence; we are deluded.

Instead of removing mad laws our citizens are blindly adding more to the list. An increase in citizens unable to comprehend the impossibility of forcing behaviour by law has produced a legislation explosion. Any area where popular feeling perceives injustice has become a reason to enact statutes. Fired by growing delusion our community is sprouting a continuous stream of absurd laws. (Also see the American experience, described in "The Death Of Commonsense" by Philip Howard. )

The prohibition effect is being extended to every facet of human affairs. Thou shalt not be racist, sexist, bigoted, unfair, or display any quality of human frailty, real or imagined. The inevitable result being an increase in the proscribed activity, increased community costs, and the serious erosion of authority.

In frequent demonstrations of madness, irrational arguments have been advanced to justify the most absurd regulations, for example the Racial Vilification law. This unprecedented statute can gain the community nothing, but it destroys freedom of speech. Few communications have only a single interpretation, hence the need for lawyers and contracts. But now a particular interpretation of ordinary chit-chat can make the author liable to legal penalty. The law is demanding that all citizens have their words censored before expressing them, or face the consequences. It is a monument to the death of reason and marks the beginning of outright tyranny.

To facilitate the detection and prosecution of offenders discovered by this massive extension of the legal code, the rules of evidence have been compromised. The word of a single individual is now sufficient to condemn the hapless accused; otherwise the esoteric nature of the new rules would prevent guilt ever being proved.

Sex without consent is a crime, thus penetration of a vagina while a female is intoxicated, or not fully awake, or has suddenly changed her mind, has officially been deemed rape. Male citizens may find themselves thrown into prison on the uncorroborated evidence of anyone claiming rape. A case circa 1991 in the UK saw a man imprisoned for rape, then released when his female accuser later confessed to perjury and became imprisoned in turn. A similar pattern to a case in Australia where Kevin Neil Ibbs, 49, was jailed for four years in 1987 for taking up to 30 seconds to stop having sex with a friend of his wife after she told him it was wrong. His former wife, Katrina Ann Carter, of Noosa Heads, Queensland, and her friend, Christine Elizabeth Watson, of Ambarvale, NSW, were jailed in 1997 for conspiracy to pervert the course of justice after admitting they plotted to have Ibbs charged with rape. The matter was not finally resolved until Thursday, March 22^nd, 2001 when the West Australian Court of Criminal Appeal unanimously overturned his conviction.

Our community now shares the justice system in vogue during the Spanish Inquisition. To be accused of a crime against popular causes, that is to contradict contemporary (circa 2000) reverence for children, women, non-white races etc.— is to be guilty, unless innocence can be proven. Though evidence for the prosecution is no longer tortured out of the accused the torrent of claims that pours out of the accuser is sufficient.

Devils and satanic possession have been replaced by their imaginary modern equivalent — psychological trauma. For just as no medieval court could deny the existence of Satan and evil agents, no contemporary court dare dispute alleged undetectable mental wounds .

The result repeats the atmosphere of The Spanish Inquisition; no one is safe. Any party who can see gain in making allegations, real or imagined, is now free to indulge this appetite. Legal processes have become the arena of lunatics and charlatans. An influence that is being promoted by the courts throughout the society.

Priests who have dedicated their lives to the church and charity now find themselves especially vulnerable. Regardless of their efforts or achievements, if one of their previous juvenile charges should claim some sexual interference, they are doomed. Their disgrace justified by the alleged mental anguish suffered by the accuser.

The general deterioration of legal procedure must be obvious to all those who believe that justice must be seen to be done. The media reveal case after case where the name of the accused cannot be revealed, along with the names of witnesses and sometimes even that of the magistrate. A case reported on 2nd July 1994 had the police refusing to identify the gunman who trapped 19 people inside a Sydney community centre. Officers said the name would not be released in accordance with official policy regarding suicide. A statement presuming the verdict of the coroner and denying our right to know who committed the crime.

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