Philip Lillingston uses the case of double jeopardy reform to argue that politics should be about conviction, not pragmitism:
“Ya see, there once was this conservative party in opposition and the government of the day introduced a Pacify the Gods Act wherein every month 50 virgins had to be sacrificed on a high alter at the town square. The people were really up in arms against this and the conservative party, having political nous, saw their opportunity. While ensuring to not appear extremist, at the next election they ran on a platform of changing the law such that only 25 virgins would be sacrificed every month.”
Even though I first read that joke over twenty years ago in an American journal, I think the sentiment is unfortunately still true today. Last September I was fortunate enough to have a post published on this site explaining how the upcoming reforms to the Double Jeopardy law in Victoria had so many ‘safeguards to protect the fundamental principle’ that their effectiveness was virtually zero. Alas that bill without modifications is now law in Victoria and about to be in WA. As much as that ship has sailed I have become interested in how some politicians can be so full of consensus in their law making, that what results is of so little consequence.
The basic tenet of double jeopardy is that once a jury has acquitted the accused in a fair trial then that’s the end to it; finality. Victorian A.G. Robert Clark displayed agreement in a press release stating “The rule of double jeopardy is an important principle to protect innocent citizens from repeated prosecutions… and … provide[s] certainty and finality in the courts.” Fair enough. But then came the “but”. However if it was a serious crime and the accused is highly likely to be guilty, then that’s different.
But how exactly, can that be different?
If a repeat trial can only be on the authority of some appellate court or committal evidential hearing then only the highly likely would be re-committed anyway. What judge wants to be responsible for a second wasted trial?
(Ironically, the new law in some situations prevents retrials even when the aforesaid principle was not involved. For those acquitted because the trial was not fair-as when, for instance, witness tampering has been discovered- no retrial is allowed if the crime would accrue a less than 15 year sentence.)
How can you believe in a principle and yet tolerate exceptions that (at least in theory) totally violate that principle? Apart from those charged with petty crimes, anyone acquitted could fear re-prosecution or miss the certainty and finality of that court decision?
What comes next? Is the Attorney-General going to embrace the concept of a woman’s right to choose while at the same time criminalising abortion; or proclaim the fundamental human right to free speech while at the same time supporting the Finkelstein report on the establishment of a new, government funded, super regulator.
I first became aware of this conviction-free, consensus type of conservative politician when Alexander Downer became Liberal Party leader back in 2004. His introductory speech declared that his party was not one of ideology but of pragmatism. It was the first time I had heard any politician openly declare an attribute that I had previously used in a political context strictly as a pejorative. On succeeding Mr Downer, John Howard appeared to be even more proud of the term and attempted to entrench this “principle” in our constitution’s preamble: “…and protect all Australians …in dignity… which may never be infringed by prejudice or fashion or ideology…”
I do not hold all members of the coalition in this category of compromise and equivocation. There have been, and exist now, voters’ representatives who have given some thought as to from where the Liberal Party got its name. The philosophical children of Thatcher, Reagan, J.S. Mill et al I’m sure pepper all our houses of parliaments, as few as these siblings may be.
One wonders who the heroes of the consensus pragmatists are. Perhaps British Conservative Party grandee Francis Pym who authored the book “The Politics of Consent”. Pym, who, as reported by the UK Guardian, “never thought it was the place of a woman to argue with a man”, voted against Margaret Thatcher when she ran for Tory leadership. Nevertheless she appointed him Foreign Secretary at the time of the Falklands War whereupon he advised a plan granting a degree of sovereignty of the islands to Argentina.
His final ‘act of consensus’, which earned him an unceremonial demotion to the back benches, was when he publicly made the incredible statement, prior to the 1983 election, that the Tories did not want too big a win. “Landslides don't on the whole produce successful governments.”
What can be said of those politicians who don’t carry the “conviction” prefix? That he who stands for nothing has a greater propensity to fall for anything. Perhaps the last word can be given to the Iron Lady herself. As quoted by Sir Anthony Parsons, erstwhile British Ambassador and archetypical patrician grandee of the British ruling class, who told what she said to him in a private discussion when talking about upper middle class intellectuals, and making no effort to exclude him from the classification: “They see everyone else’s point of view and have none of their own.”
Philip Lillingston is policy adviser to the Crime Victims Support Association and maintains their web site on reform, DoubleJeopardyReform.Org. He is a member of the Liberal Democratic Party.
