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Criminal law needs to be protected from populist governments

Our NZ Criminal law needs to be protected from populist governments.

Criminal law changes are now increasingly being used by politicians as a vote gathering tool pandering to lynch mob special interest groups. To look tough against crime, govts constantly increase penalties, create new crimes, and make it harder to get bail. And not just for the more serious matters.

The English Common Law derived legal system we use was carefully built up, crafted and altered to fit modern times over many hundreds of years.

However in New Zealand we have no protections for its integrity, like an upper house, or constitution. The political party in power encompasses both the executive and the legislature.

Hard cases make bad law, and many urgent and recent changes have been driven by hard cases. So we see defenses, like provocation, built up over hundreds of years near instantly removed.

To protect our criminal laws from political abuse and gamesmanship, we need a proper criminal law committee that the government cannot just instantly override. The law society needs to push for these criminal law protections.

Our law is making it increasingly difficult to defend the innocent, being driven by victim based ideologies. There are higher thresholds for bail, limited discretion by police in determining allegations, and less ability to challenge accusers, eg evidence in chief given via prerecorded police interviews. Many protections of the innocent have been removed.

When there is plea bargaining and sentence indications, the summary that must be agreed to is often the high point of the prosecution case. And if people are found not guilty after spending months or years in custody, there is no compensation.

In the last decade criminal conviction numbers have not dramatically changed but we have 3 times as many people in prison. One third of them are on remand. We have evil laws like the 3 strikes law, increasingly high bail thresholds, and limited parole, all leading down the failed US path, of increasing prison populations.

There is the old maxim, that for justice

Laws must be fair, and must be applied fairly.

No matter how fairly our Judges apply our laws , if the laws themselves are unjust , then justice cannot be done.

Ted Johnston Criminal Barrister, Manukau.

22/9/19.

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