Natural Justice

Being in the habit of asking controversial questions, I am prepared to ask another.

At what point, if ever, should a crime be, if not forgiven, then annulled?



By way of context, I point to the various statutes of limitations that exist around the world. In Australia these apply in the main to corporate or civil law, but in other parts of the world there are also limitations on prosecution for various crimes.

In 2015, legislation was passed in Victoria to amend the Limitation of Actions act in order to effectively remove all limitations on actions “that relate to death or personal injury resulting from child abuse”

The act had previously allowed 12 years for an action to be brought, but the clock effectively started ticking at the attainment of majority (ie turning 18). There were other factors too that meant that effectively the absolute limit to bring civil action was attaining age 37. A hearing in 2014 was reported to have found that on average, 24 years passed before reporting.

Despite my best efforts, I have been unable to find any report that says this. The best I can do is a fairly comprehensive report by the University of Sydney that shows a median time elapsed of 28 months from earliest offence to committal and a mean of 91 months, owing largely to a small number of very long delays.

Nonetheless, there is an ongoing movement, largely complete, to remove all limitations on civil related to child abuse. Not that such criminal actions were never subject to a limitation in Australia.

My concern in all this is justice for the alleged perpetrator, so here comes the controversy.

It is a foundation of our law that all persons brought before the law are entitled to what can be broadly called ‘due process’. Historically this means for example that they have a right to a fair trial, to be judged by their peers and to be considered innocent until proven guilty. Much of this stems from the Great Charter of 1215, commonly known as the Magna Carta, about the closest thing that English law ever had to a Bill of Rights. (The image above shows a 19th century romanticised version of King John signing the Magna Carter)

In US law, this sentiment eventually led to the ‘Due Process’ clauses in the fifth and fourteenth amendment. In English law and therefore in Australian law, there is very little black letter law supporting these rights but there is a principle of ‘natural justice.

Commonly accepted as part of this natural justice, apart from the principles outlined above, are such things as the right to a speedy trial and the right to face the accuser. In the case of historic child abuse, neither of these rights are afforded the accused. The right to a speedy trial is forgone by the delay in reporting and while you could argue that this is due to the nature of the crime, it remains a fact that the accused is being asked to defend himself or herself against crimes that were committed in the dim past. With regard to the right to face the accuser, our society has decided that in the case of sex crimes generally the accuser will not usually have to face the accused.

While my sympathy is naturally enough with the victims of crime, I do think that the pendulum has swung a long way in their favour. Another historic principle of law, known as ‘Blackstone’s Formulation’ suggests that “It is better that ten guilty persons escape than that one innocent suffer” a principle that has been in place since biblical times but has rarely been expressed so succinctly.

Sadly, I suspect that we have moved somewhat from Blackstone’s principle. Wrongful conviction rates in the US run as high as 3% and we know that at least 71 Australians have been cleared from crimes that they were previously convicted of. It would be foolish to imagine that there are not a great many more innocent people that have been or are incarcerated.

The principle expressed by Blackstone is that personal liberty is the most important right of all and that courts and governments must protect this right above all others. To that end, we should err in favour of the accused rather than the victim.

The diminution of the principle, goes to a central theme in modern societies; the exchange of liberty for safety. We forgo liberty in exchange for safety and thereby we encourage tyranny. If something is bad for you, we ban it and if something is good for you, we compel it. See for example guns and bicycle helmets.

In this way, we find the possibility of a criminal walking among us fearful and our inclination is that we should err on the side of the victims. I guess that only applies so long as we are not the accused.
We have traded so many liberties for safety over the last fifty years or so and every time we do we allow the government more power over our personal lives.

So coming back to my original question, I have a concern about historic crime and I wonder if there is a point at which it should simply be annulled? If the crime remains unprosecuted after 20 years, should it be ignored? What about 50 years?

I would love to hear your view on this. Let me know.

Image courtesy James William Edmund Doyle [Public domain], via Wikimedia Commons,