Herald writer John Roughan puts the layman’s case against Simon France J’s stay of the Red Devil prosecutions.
There is also legal logic against what the judge did, hopefully to be tested on appeal.
I can understand the judge’s outrage. I would not have been as charitable as him about the police serving up a late-manufactured purported operations manual entry. From the judge’s account there should be prosecutions for false swearing or some other perjury or serious deceit charge.
But the Judge also notes that the deceptions have no connection to the charges he stayed. They do not taint the evidence. The stay is therefore intended only as a punishment for the Police, it has nothing to do with the merits of the charges against the Red Devils. They win and if they were guilty as charged the rest of us lose because he wants to send a message to the Police.
Exercising leverage by intentionally hurting innocent third parties is the operating strategy of terrorism. It is distinguished by its purpose from the military willingness to injure civilians as “collateral damage”. International conventions and the ICC criminalise the deliberate targeting of non-combatants, but actions against combatants that harm non-combatants unavoidably are legitimate. The test is whether the injury to third parties is deliberate.
Terrorists believe their purposes over-ride all others. They believe their objectives are so pure that the deliberately caused suffering of the innocent is just a necessary price. Their ends justify their means.
Alternatively, to justify the hurt to their victims they impute collective guilt to them as a class (capitalists, citizens of the great Satan, Christians, Jews, night club patrons, Shia – to Sunni and Sunni to Shia).
They turn to terrorism to defeat the safeguards that protect majorities from minority oppression. They can’t persuade voters, or get a privilege from due process.
The Red Devil case judicial approach has many paralells. Judges who trash prosecutions to punish breaches by particular Police officers seem to feel they have insufficient direct power over those they want to control or to punish. Perhaps they believe usual procedures for punishing wrongdoing deliver inadequate deterrent sentences. Perhaps they think the process is too slow or cumbersome or gets insufficient media attention. We do not know because generally they do not explore the alternatives. Justice France does not in this Red Devils case.
Welcome to the law judges, as citizens experience it every day. Citizens are told smugly that they have no excuse for taking remedies into their own hands. Judges do not condone them taking their deterrent vengeance to an organisation that employs the wrongdoer. Wronged individuals may not take out their frustration on the wrongdoers associates or colleagues.
As John Roughan makes plain, staying a prosecution punishes the community. It is conceivable that it may punish the culpable police officers with embarrassment. But does the judge know who is culpable? Who gave the orders? Is the behaviour so widespread that the organisation will instead close ranks behind those who just happen to have been caught.
Perhaps there are mechanisms by which those in charge will pay a price for anything bad which happens on their watch. Terrorists act on the assumption that a government which cannot protect its innocent citizens will lose power, and have to concede. In fact the opposite often happens.
The punishment chosen by this judge is a very long way from the the simple wisdom of an eye for any eye. He has not identified whose eyes have been or will be put out on any side.
Those who pay the highest price for a stay are the next victims of offenders who would have been in custody or deterred by the charges proceeding. Next comes the community’s trust in the law. If the consequence is the emboldening of a gang the outcomes of this application of the terrorist approach could be as dire as the physical harm of “normal” terrorism.
To the extent crime rates generally are affected by any obvious ineffectiveness of the law the decision could have as many victims as a bomb targetting random innocents. The bomber says ” I destroy or kill something or someone valuable to you if you do not behave as I want”. The judge has said much the same to the Police collectively.
For gangs there must be little more encouraging than to get a free pass because the law’s agents are fighting among themselves. The law truly is cutting off its nose to spite its face.