Bradford and Clark must be howling with glee and derision. They’ve outlawyered  (not to mention out-politicked) opponents of their Bill. 

The ‘compromise’ words  have no legal effect.  They merely “affirm that the Police have a discretion not to prosecute”  – meaning that no new discretion is added,  only the existing rules and duties apply.

Worse – to escape prosecution the smack must be “so inconsequential that there is no public interest in proceeding with a prosecution“. Those words can’t have had competent legal consideration from any opposing lawyer. 

At the technical level “no public interest” is ludicrous.  Of course there will be some public interest in almost every incident. 20% of the population have a passionate interest in forcing the rest to change their child rearing beliefs. That 20% has made it illegal to smack.

There will of course be immense public interest in test cases, and passionate views that it is in the public interest to bring them. The more “inconsequential” the smack, the more deterrent impact a successful prosecution will have.

To disqualify any prosecution it should have said something like “no reasonable public interest”  or “no useful purpose would be served that outweighed the public interest in avoiding prosecutions that bring the law in to contempt”.

And then there is the contempt shown for our constitutional traditions. It is fundamental to our law that it is not for the Police to decide what the law is, or ought to be. It is their job to uphold it.

Now the leaders of Parliament are telling the Police to ensure that the courts do not get to consider where the law’s boundaries lie. Here is Parliament cold-bloodedly passing law it does not want enforced.

Any wonder why our criminals think the law is a joke, and we have among the highest levels of violent crime in the Western world. 

For years I was the only MP prepared to debate this issue publicly with Ms Bradford. I went to public meetings all over the land with her. She is good company.

But she has the ruthless Marxist view that the ends justify the means. She lied happily about the legal effect of the Bill, on the basis that it was in a good cause. Now she’s drawn  the rest of Parliament into legal deceit.

When Burton is sentenced tomorrow New Zealand justice should be ashamed. In Britain and New South Wales the judges could say “you will remain in prison until you die”.

In New Zealand no judge can say that. They could have and did, here, until the loopy “justice as therapy for the criminal” theorists took control.

Preventive detention gives the discretion back into the same effete hands that let Burton out to commit his second unprovoked murder.

 Lawyers who value liberty should be  uneasy about preventive detention. It removes the safeguard of court  neutrality in applying the law and gives the sentencing discretion to state officials. The unique boast of our legal system was that no  individual’s  liberty  was  at the whim of  politicians (or officials  who must follow their orders). They could be acting for many reasons other than justice.

Worse, it is a consolation prize  –  intended to distract the dumb punters so despised by the justice establishment. Instead of getting justice as the result of the trial,  we are told,  “leave it to us”, “trust us, we will see that he is adequately punished “, and “we will keep you safe“.  Yeah right. 

In reality the anointed want to head off any risk that the courts will give a sentence that the crime deserves. They want to have the discretion to let these beasts out earlier than anyone would accept at the end of the trial, while the hurt and loss of the crime is fresh.

For practical purposes, the preventive detention law passed (over my objections in 2002) falls short of  delivering justice because:

• Burton should know, his victims’ families should know, every criminal minded to admire his “staunch” behaviour, and everyone else should know, that for certain that he will die in prison. NSW and British judges can once again deliver that message.
•  There are some crimes and people so evil that justice requires that unequivocal message –  a sentence that the murderer will never be released. Our judges could, once, and should be able to again.
• a preventive detention sentence delivers the power back to the same people who have just applied their loopy theories and failed. They will try to let him out again because they do not believe in punishment – they believe in “therapeutic justice” – that is, the purpose of the system is to cure a sickness in the criminal.
• that multiplies the victims’ suffering many times over the years. 10 or 15 years down the track the victims will have to decide whether to try to prevent his release. The law means that they can only do so by arguing to the Parole Board that it is a public safety issue. Victims should be able to say, quite simply, that it is a justice issue. Why should he be  en joying freedom, no doubt with the state’s bountiful support, while Karl can never en joy anything again. 
• Worse, a change in the Bill before the government right now will allow the Parole Board to decide not to hear from them if they think it is not related to safety.  Sensible Sentencing has been with many victims at these hearings. The existing limits on what the Board can listen to are disgraceful. The current changes will make it worse. The Parole Board should have the power to deny release simply because it would offend justice. 
• If the victims decide to try to leave the whole affair behind them by not protesting at a looming parole, they will feel disloyal to Karl. Meanwhile Burton will be being carefully cosseted, readied for release, to renew his life, while they can never again spend time with their son, partner, father etc.
• All cultures and peoples have a tradition of punishment to redress the balance, to ensure that offenders can not count on being left better off by and after their crime than the people they have wronged, but the “therapeutic” theory has ruled in NZ for 30 years. The establishment know better. They hate the idea of punishment as denunciation and levelling the scales. They persist in seeing it as “treatment for the benefit of the offender”.
• It is outrageous that tomorrow none of Burton‘s latest victims, or his earlier victims have any right to tell the court what should happen to him. Instead their victim impact statements are strictly confined to reinforcing their position as “losers”. They are entitled only to whine about what has happened to them.  
• Burton‘s lawyer and family can come and tell the court what they think should happen but not his victims. Victims  should have exactly the same right to tell the court what they think should happen as the criminal and his lawyers and whanau.

There is no reason to apologise for wanting punishment that ensures a price for crime equal to harm of the crime.

Employment law means you can’t lose your job just for lying or cheating, or boorish unpleasantness or immorality. It seems you must first be warned that these are against company policy.

There are exceptions. If your wickedness also falls into one of the new capital crime categories (i.e. old fashioned racial or sexual insensitivity) you might be gone by lunchtime. Otherwise you’ll have to be caught with your hand in the till, or convicted beyond reasonable doubt, or so stupid that you ignore three warnings and fail to take advantage of some tiny ‘inappropriateness” of procedure.

Clint Rickard’s case probably falls into the capital crime exception to the general immunity from sacking. Schollum’s video could qualify any cops involved for both that exception and the stupidity one.

But perhaps they’ll be reprieved. Sooner or later  someone important will remember the Wishart factor.

It sounds as if the Schollum video shows nothing much that would be morally distinguishable from the consensual depravities alleged by Mr Ian Wishart to be enjoyed by a sitting Cabinet Minister. It could hardly do to hound some humble policemen into early retirement for their unpleasant off duty  proclivities, when there has been a resolute adherence to the order – “do nothing, pretend no one has said anything”,  in relation to similar allegations about one of the highest in the land.

Any failure to humiliate Dr Cullen over the Police ejection of Parliamentary journalist Nick Wang should warn National that it will be very much harder for them (than Labour) to take and hold power.

PM Jenny Shipley’s officials were suspected of conveying instructions to our Police and diplomatic protection personnel from Chinese  security men in 1999. Police moved law-abiding Tibet supporters from near the Chinese President’s hotel and route. The media ran the story for weeks.

Labour were able to make the issue run because the media were ripe. They shared a collective sense of mission –  to test the PM’s credibility,  and to see the government gone. The Tibet protest suppression had the right ingredients – kowtowing to a foreign power, suspected duplicity, and constitutional breaches (of the independence of the Police). 

Dr Cullen has gifted identical factors to National.  We’ll see if they can use them. So far the running seems to have been made entirely by the Gallery. 

Immediately after the 1999 election Labour initiated a Select Committee inquiry, designed to destroy Jenny Shipley’s credibility.

I learnt much from sitting on that enquiry.  Once it was clear that Mrs Shipley was not implicated it became my first experience of Parliamentary bi-partisanship, as the committee grew increasingly appalled at the untrustworthiness of Police witnesses. No MP on that committee was unaffected. Most shattering was the simple stupidity at senior levels,  in sticking to incredible denials in the face of overwhelming evidence, including video footage.

The committee had no desire to destroy public confidence in Police integrity. We noted our unhappiness with their evidence and focussed the report on protocols for preserving constitutional propriety. It appears from reports of the Wang affair that Police agreement on those might have been as unreliable as their evidence to the committee.

Good to hear the Green and Maori Parties’ spirited defence of that ancient and vital principle. They oppose the bill to allow confiscation on suspicion of criminal connections. It would allow it  without conviction, or even when a conviction is overturned.

Shame on the pusillanimous parties that supported it, especially NZ First and National. They should expose disgraceful smokescreen bills like these as Labour’s desperate attempt to look tough on crime. 

Does anyone else hear the echo of Stalin’s show trials in Kathie Rifle’s guilty plea on Monday? Desperately remorseful, she and her husband Jack publicly accepted that the police had to lay careless driving charges against her. The Rifles just wanted to get the process over. The pain won’t end for them.

The world has never understood why so many of  Stalin’s victims went to their deaths publicly apologising for crimes they had never committed. I think we are seeing the mechanism here.

When the entire establishment backs a justice system has been perverted beyond recognition its victims lose confidence in their own judgment. They assume that because they are out of step they deserve the pain inflicted on them. Some even thanked Stalin for his wisdom in ignoring their inability to remember what they had done wrong.

Six months ago three of Mrs Rifle’s children were killed and she was seriously injured when her car landed upside down in a culvert. The cause of the accident is not known. Probably she fell asleep.

What’s the purpose of charging her? What conceivable good can charges do in such circumstances? What court punishment could mean a thing beside her current suffering?. What victim is avenged by these stupid charges? What deterrence can it possibly achieve, greater than the deterrence of losing your loved children, your own health and your car? What conduct is it supposed to denounce and correct – she does not even know what happened. No one does.

Who is protected by this disgraceful police practice of criminalising people with no evil intent? Police do not have the resources even to answer calls for help from victims of deliberate wickedness! Yet they pour thousands of man hours into accidents that no one intends.

Our criminal law has travelled far in the last four decades. It was focussed on the guilty mind, on conscious wrongdoing. Not any longer.

Now the Police would rather force a 35 year old mother, described by the judge as a decent person who had led a blameless life, to weep her guilt in front of a judge, to spend their money on lawyers and then to reassure the Police that they were doing them no wrong.

A row between Britain’s Lord Chief Justice (judge) and Lord Chancellor (politician) highlights the Blair government’s approach to crime.

Britain now has 34 murderers on whole of life sentences. They will die in prison. Their Court of Appeal just increased a sentence from 30 years to 50. Lord Falconer responded to the top judge’s complaint that “the prisons will be full of geriatrics”, with the hope that others, like Ian Brady who had not got whole of life sentences, would also never be let out. Best of all, he gave a robust justification for retribution as a legitimate purpose of punishment.

In 6 years of Parliament I never heard another NZ politician risk a defence of retribution. And more sad still, all the victims I’ve met through Sensible Sentencing have felt obliged to offer the PC mantra that they are not looking for retribution. The authorised piety perverts the honest need to see punishment into “all I want is to ensure that this does not happen to anybody else”. 

Sympathetic questioning reveals the contortions required to believe and say that. You’ll find of course they want the criminal to pay the proper price. I know of no culture that did not base justice on reciprocity. Nearly all our victims feel the the offender should suffer something. Securing that helps them feel the world is not entirely unbalanced. In short our stifling official cant forces the victims of even our worst crimes to feel ashamed of their natural and laudable desire to retaliate.

Then the official processes incarcerate the victim in the role of loser. Their only permitted voice in court is through the victim impact statement. They can recite how badly they’ve been affected by the criminal, but they are gagged on sentencing. The criminal can bring along his family or whanau to urge the judge to let him off lightly. The victim may not even be allowed to read her statement, and it can not touch on the sentence.

And now the government is changing the Parole law. The Parole Board will be able to refuse to hear victims. The Board will have a discretion to listen, but only if the victim confines herself to suggestions on ensuring that the community will be safe when the criminal is let out. Even if the victim could comment on the justice of early release it would not do any good. The Parole Board is not to be allowed to take account of the justice of letting the criminal out early. They can’t even consider the original judges reasons for sentencing. This is the NZ Labour’s  version of “cracking down”.

Would that New Zealand had the Blair version of Labour.

Tonight’s Prime News gave $10m as the cost of precautions for the lahar. The Ohakune policeman is glad he can now go more than 20 minutes from the station.

Still nobody has been rude enough to interrupt the official self congratulations with a reminder that it was all unneccessary. For less than $200k (the highest estimate) three years ago a bulldozer could have cut a smaller channel than the water has now cut and there would have been no lahar.

Just after Christmas 2004 a friend and I climbed up to have a look at the tephra “dam”. It was a gentle saddle. Even amateur I, with my bulldozer,could have cut the trench in a week or so. An expert operator with a bigger machine might have taken only a couple of days.

Many New Zealanders have been up above the Crater Lake on bulldozers. In the 1950s and 60s you could ride up on a bulldozer modified to carry skiers.

But now the Gaia worshippers have taken over our secular state. They would rather bulldoze thousands of tons of spoil nearer the desert road, and spend 50 times more, than challenge the pretensions of those who invented new “spiritual” reasons to let the risk mature. 

I am too furious to be coolly analytical.

These reports show the system colluding to cover-up scandal.

The immediate scandal is the casual breach of duty by the Parole Board. They had no evidence from which to infer that ‘the community’ would be safe from Burton, and plenty of evidence that, in the words repeated in successive psychological reports, he would be at “high risk” or “very high risk” or “moderate to high risk” of “reoffending in a violent manner”.

They had no reason to assume that their fanciful conditions would be enforced, even if the Probation Service had the capacity to do it. The Board must have been on enquiry. There is plenty of evidence that the Probation Service enforcement has broken down. Parole Board members must have willfully turned a blind eye to the collapse of morale and capacity in that service.

A Board that was complying with its statutory duty would have simply refused to release Burton. They would have also told victims and the government that the Board would release no more such prisoners until conditions imposed were enforceable and routinely enforced.

A greater scandal is the impression these reports struggle to convey that no one has done anything wrong that can’t be fixed by more “communication” and better guidelines. Here is the judgment of the Parole Board review team;   “Having made the judgment that the unproveable allegations about Burton’s conduct recounted by the psychologist should not be taken into account, on the information available before the Parole Board on 28 June 2006, the decision to grant Mr. Burton’s application for Parole was reasonable.”

In other words, having discarded all the inconvenient evidence that Burton is dangerous, including the psychologists’ judgments that he remained a high risk, and the Board’s unavoidable knowledge that their conditions are pie in the sky, and the action of  of prison officers in fear of Burton, then it is reasonable to decide that there is not enough evidence that he might be a danger.
 
Still more scandalous is the contempt shown for the public on the face of these reports. The reports give a shallow burial to the vital questions in mounds of irrelevancies. The authors feel no need to offer an excuse.

This is the anointed of the justice establishment closing ranks against the ordinary people they so despise. By saying there is nothing wrong that a bit of extra “communication” cant fix, they shelter the loopy theory that if we are just nice enough for long enough to brutal criminals, some day they will be nice back. To these anointed every year’s  thousands of innocent victims of paroled criminals are just necessary sacrifices to their need to show they are more compassionate than us ordinary people.

The greatest scandal of all is the political hypocrisy in maintaining the parole system. Its victims are statistically absolutely predictable. Four out of five parolees will have found new victims within 3 years of release. The same politicians who’ve slammed decent citizens with crushing liabilities for fractional percentage risks of unintended harms, exempt their own agents from liability for near certain harm to the innocent. They protect a system in which they loose criminals who present an 80% risk of finding fresh victims.

The Corrections  internal auditors show the way:
1)  On the first page they give Burton’s murder conviction a date wrong by 10 years; – what confidence can we place in so called “auditors” who can not even get that right in a report that must have been minutely edited?
2)  They admit that the “investigation did not focus on the advice provided by Community Probation Service relating to proposed release conditions”; – why not? What else was going to promise safety? Even the prison guards were so scared of Burton that they moved him to higher security for the last few months of his imprisonment? All concerned knew that only the supervision conditions stood between him and his next victims.
3)  The external reviewers of the Parole Board decision are scarcely less coy, but at least in their last paragraph they admit the vital importance of the fanciful conditions ”We are not privy to what happened after release except the public information around the tragedy, but the case raises a question as to whether the Board’s expectations were reasonably capable of being resourced by those responsible for supervision. This may need consideration elsewhere, but in like cases it seems desirable that there be a mechanism for confirmation that Corrections can adequately service the Parole Board’s set conditions before release is effected”.
4) The internal auditors carefully avoid describing the alarming facts behind Burton’s 14 days segregation and move to higher security before his release. They call it “unsubstantiated intelligence”. They record that the Parole Board heard about it from a psychologist but decided to ignore it, but do not explain why it was not mentioned by other prison service personnel who reported to the Parole Baord.
5) The internal auditors assume the materiality of  the Parole Board’s earnest belief in the power of escorted pre-release excursions through town without presenting any research or other evidence that excursions make the slightest difference to the risk presented by a vicious and calculating murderer?
6) They waste pages excusing the failure to give Burton most of those excursions. In four different places in their report we learn that a change in law, coupled with his security risk classification, deprived Burton of some of his excursions. Nothing is said, on the other hand, about why the ‘intelligence’ could not be substantiated that lead to Burton’s segregation and detention in higher security.

The Parole Board reviewers spill the beans. He was suspected of having broken one inmate’s arm, left another severely beaten and terrifying a third, but all were so scared they would not give evidence. Then prison officers heard he had put a contract out on them so they acted.

Why were the reports of  such conduct not taken in to account by the Parole Board? And why is this elephant studiously ignored?

Because the politicians want lip service to the allegedly “paramount consideration” of community safety.  What is actually paramount is the prisoner’s right to release if the Board can not prove he is a threat. Instead of being a privilege that a clean record might earn, the lawyers have won. Safety is now the privilege. And it is reserved for those in the leafy suburbs far away from the pre-release hostels, and the poor townships frequented by parolees.

In real life people appraise risk on the basis of experience and probablilties (otherwise called common sense, or intuition or suspicion). They do not wait for proof of risk. But in lawyer-land precautions are only permissible when suspicion has been proved in the formal proceedings that make them money. Sure, if you are an employer or building owner or farmer you can be judged guilty until proven innocent if someone is hurt. As the Berryman case shows, even if someone else was at fault and you did not even know the seriousness of  the  risk, you can be convicted and driven to bankruptcy.

But not those who design this justice system, and make the rules.

These two patsy reports show an establishment closing ranks, to defend the indefensible. What hope can the victims have of getting a penetrating report in to the next phase of this tragedy – the dealings with Burton after he was released.

Our last of four has just left home for her first year at University in Christchurch. (We have lots of conversations about what empty nest parents can get up to….)

Of more concern is the number of our kids and friends’ kids and kids’ friends who are studying art history and law and accounting, and learning to be chefs or film makers. Don’t get me wrong, they are all worthy occupations. But where are the engineers and scientists and plumbers and mechanics, the people who make things and repair the machines that we are now so reliant on? The upside is that it is now more unusual to get bad food in this country than in France. The chef boom is delicious. But head offices and the toughest biotech research and hardest thinking in design and manufacture are heading to China and India, and the US. Our securities and business law (my specialty area) is making it ever more attractive to sell control overseas.Our medical ethics committee blocks yet another experiment because we do not know how it will turn out (isn’t that the whole point of experimenting). We fear the unknown. As aging folk we invest more in history than the future. We are no longer excited by science and engineering. The RMA shows how much we hate change.