The anti-smacking bill is an obvious example. The bill removed the defence of reasonable force for assault from the Crimes Act and instead placed discretion as to what is reasonable in the hands of the police as opposed to the court.

The Seabed and Foreshore Act prevented private citizens from taking a property dispute with the Crown to court and instead the legislature, in a massive conflict of interest, simply declared that the property belonged to them.

The weakening of due process is further evidenced by the abolition of an independent appeals court (The Privy Council) and the changes to double jeopardy and the requirement for jury unanimity.

The Copyright Amendment Act, due to come into force on 28 February 2009, is another example. The Labour government wanted to tighten up copyright law, particularly around internet copyright violations so far so good. Except that bits of it were not drafted so well and despite the Select Committee deciding, unanimously, to delete the questionable section from the proposed law the Labour government decided to keep it in.

The sections at the heart of the controversy are:

92A Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

At first glance this might seem a bit innocuous. However, as David Farrar points out:

The bill did not define “reasonably implement”, “appropriate circumstances” or who decides if someone “repeatedly infringes”. It also turned ISPs into an unpaid enforcement arm for copyright holders.

Farrar’s article explains the issue well citing intellectual property experts and is worth a read. Essentially, ISP’s will be subject to the threat of legal action if they allow a person who repeatedly offends to use their internet services. The problem is that without these terms being defined they simply will not know whether acting on or failing to act on a complaint subject them to legal action. Being on the wrong side of the law is costly so these providers will have to set in place fairly draconian policies to ensure they are indemnified. As the NZ Computer Society states, quoted by David Farrar, The law essentially places “ISPs in the position of potentially having to be the policeman, judge, jury and executioner in what are often vague and unclear situations”

For some people a website is a bit of fun, a creative outlet, for others it is their business, their livelihood; for all, regardless of whether it is a source of income or not, a website and its contents is the private property of its owner. When a law is passed that allows a single citizen the power to lawfully deprive or interfere with another citizen’s property on the basis of a single accusation, with no requirement for evidence and no opportunity for a hearing, a first year law student should be able to tell you there is something wrong with the law.

The National government needs to repeal this section. Like all governments they are more likely to do this if they feel there is wide spread community support (as lousy a reality as that is) so the internet community is banding together with an Internet Blackout from February 16-23 that calls the government to fix this legislation.

… stop buying the liberal excuses. Every blame-shifter, every apologist, every politically correct naysayer is, in reality, part of the problem. They are the pimps of abuse – they condone ill-treatment because they make excuses for the perpetrator.

And I include defence lawyers in that retinue because they whore their intelligence to protect the evildoers. As a rule, criminal defence lawyers have no soul. … [emphasis added]

Now maybe I took issue with this because of my vocation, but ‘defence lawyers whore their intelligence?’ Is Laws arguing against due process? Should every accused automatically be assigned an in-intelligent lawyer? Perhaps we should forget about a trial altogether?

Further, ‘defence lawyers have no soul?’ Is Laws aguing against the presumption of innocence? If the court finds the accused not guilty then we must assume the defence lawyers were right.

What’s next? A complete removal of autrefois acquit and autrefois convict (commonly dubbed “double jeopardy”) in cases where the public ‘know’ the court got it wrong?

The defence laywer’s job is to present their client’s case. The state’s job is to present the evidence that the accused is guilty. If the public is to have faith in the integrity of the justice system we should hope that both sides are highly skilled; the standard of evidence must be so high that the court, and the public, are left beyond any reasonable doubt of the accused’s guilt, or lack thereof; expecially if we are to consider re-introducing the death penalty.

If the state is competent, and it is patently obvious the accused did it, then the most intelligent defence lawyer in the world will not be able to combat this. When the state bungles a case the last thing we should be doing is booing and hissing at the defence, do we really want to drop the standards and make it easy for the state to get a prosecution? This will give the state far too much power and society far too much uncertainty in the justice system.

We have to remember, as FE Smith points out in the comments section here, that it is not the defence lawyers who kill the Nia’s of this world and we must put our faith in the presumption of innocence and in due process because the alternative is worse.

As I have previously argued, the presumption of innocence means, inevitably, that sometimes the guilty will walk and the innocent will be convicted. Whilst no one likes or condones these negative connotations the alternative is worse because the solution to ensuring that the guilty always get convicted is to imprison every accused and likewise, the solution to ensuring the innocent never get convicted is to never convict anyone. The system is balanced to make it difficult to convict, and this is where the intelligent defence lawyer is necessary, because it is generally deemed worse to send an innocent person to jail, or give them a lethal injection, than to fail to punish the guilty.

So we are left having to accept that once a court has heard a case, weighed the evidence and ruled, that’s that. Demonising the defence lawyer because, despite the court’s assessment, the public “know” this person is guilty (good ol’ trial by media) is to give the state far too much power and to give society far too much uncertainty in the justice system. Whilst it may succeed in increasing the chances of nailing the guilty it equally runs the risk of allowing the state, with its vast resources, to hound and harass the innocent.

None of us like the idea that the someone will not be held to account when a child is abused to death but we must be careful we are not calling for anyone to be held to account; what we want is the guilty to be held to account and for that important distinction to be drawn we need good defence lawyers.