In May 2008 I posted on why the trial of Sophie Elliott’s murderer meant so much to Cathy and me.

"Cathy and I spent several hours with the Elliotts at their home in Dunedin after the graduation ceremony where Sophie’s brother accepted her certificate. My son had travelled with Sophie and another girl in Australia shortly before Christmas."

Cathy attended the trial and Gil and Lesley used her parents’ flat in Christchurch for the trial, after the Court ordered that it be held out of Dunedin. No one compensates victims for the resulting costs..

So I’m sorry I did not discuss with them before now how the law should be changed. Of course they want  to ensure that future families do not have to suffer helplessly for weeks while a monster attacks his victim in court.

I understand why they feel as they do but I disagree with their prescription.

The troubles with abolishing provocation, for families in the Elliotts’ position, are:

a) it could absorb all the political energy that should otherwise he going into the real scandal – the delay before trial, the huge waste of resources on it

b) it will do nothing to increase the rights of victims to be heard in court. One scandal in criminal justice is that they have no standing in court to challenge Weatherston’s lies. That is not the prosecution’s task. We should have the French system’s recognition of vicitms as parties entitled to be heard and to challenge witnesses. The anointed in our justice establishment are moving in the opposite direction, if we are to be guided by the Chief Justice’s recent public burblings against victims gaining "a sense of ownership of the criminal justice processes" and worrying that the emphasis on victims risks "turning back the clock" on "public ownership [she means judicial ownership] of the accusatorial system of determining criminal culpability". 

c) it will leave in place the current imbalance on sentencing, where Weatherston’s family or whanau have a right to tell the judge what they think the sentence should be, while that is prohibited to the victim family.

d) it will be an unstable reform, because provocation is an essential consideration in determining culpability. The next case could be a battered women, driven beyond endurance by years of brutality. Why should she be prevented from explaining why she snapped? Or consider the injustice if Lesley’s brother was unable to advance provocation if he had snapped and attacked Weatherstone that morning if he had arrived just as Weatherstone was leaving covered in blood, and been told by Lesley what had happened. As it happened he almost did call in near the critical time.

e) it will not eliminate public hearings where offenders attack the victim – it will simply shift it to the pre-sentencing hearing, as the convict uses the same excuses to the judge, to diminish culpability, and hopefully the sentence. They will do so to create a foundation for appeals against sentence. Appeal judges will set about crafting a whole new superstructure of formal rulings around the effect of provocation, in place of what we currently get from the jury’s intuitions.

f) it will hand to the judges even more power when they have already shown irresponsibility with what they’ve got. Judges, not Parliament control how trials drag out. They are to blame for criminals knowing there is a pathetic cost, if any, for raising stupid and offensive defences. And judges are to blame for the complexity and confusion in the principles of provocation.

 At root the courts need to recognise there are competing ideologies. The health of our democracy and respect for law and order depend on judges accepting that elite views can not be imposed. If they have not persuaded the people of their justice theories, then they will not stick:

• On one side the ideological world view espoused this morning by Law Commissioner Warren Young who simply asserts that "provocation has no place in the 21st century". In other words the only the State is ever justified in using force. And only justice insiders (not juries, or Parliament)  should prevail on when force will be punished.
• On the other side the view that the law should reflect ordinary morality, and allow juries to put themselves in the shoes of the offender, and decide whether the response was wickedness, or what a reasonable person and society should expect.