Chief Youth Court Judge Andrew Becroft’s extravagant attack  on Ron Mark’s Bill to lower the age of criminal responsibility reminded me of Theodore Dalrymple’s sad reflection after his visit to New Zealand last year. Becroft’s non sequiturs illustrate Dalrymple’s judgment on NZ judges – “Their own reputation for generosity of spirit and lack of vengefulness was more important to them than protection of the public“.  

When a judge steps into politics, with state funded propagandist Dr Cindy Kiro, he should do so with great circumspection. To claim credit for our discredited Family Group Conference system and the Youth Courts, because only 80% of offenders who go through the system do not reoffend, he invites a suspension of the constitutional convention against political scorn for judges.

If he is saying that it is good that only 20% reoffend of the kids who come to Police attention (the usual measure of youth offending) he is trivialising a terrible statistic. We should expect a far lower proportion of kids to repeat their first ‘criminal’ mistake. Most apprehended kids are dealt with informally by the Police.

20% could be as many as 10,000 a year reoffending. There are around 7000 Family Group conferences per year, and between 2000 to 3000 Youth Court charges. So a huge proportion of these farcical proceedings must be ‘failing’.

The judge comes from what Dalrymple described as Mailer’s world (drawing on Mailer’s enthusiasm for a murderer with literary skills and tastes, who murdered another innocent after being lionised by Mailer and his New York friends):

“Mailer lived in a world (that of radical politics protected by a bourgeois order) in which words never really meant what they said or said what they really meant, in which moral exhibitionism was the highest good and the sine qua non of the regard of one‘s peers. So safe were they in their literary enclave that reality didn’t matter much; what counted was the ability to use words in the approved fashion, and truth was nowhere.  

Ten years later, Mailer indirectly recognised his mistake, saying that the Abbott episode was not one of which he was proud.

But it seems that the disregard of reality that he displayed has now entered the New Zealand criminal justice system.  You probably think of New Zealand as an empty land of beautiful landscapes: and so it is. It is tolerably prosperous, it is egalitarian in ethos, it is uncrowded, even its fauna and flora are gentle. It has no native carnivores and no snakes. Its climate is temperate and in places among the most pleasant in the world. It should be peaceful.  

And so it once was. In 1950, when it was one of the wealthiest countries in the world, it had almost no crime whatever, or at least an irreducible minimum of crime. Now it has one of the highest crime rates in the western world, including crimes of violence.

It is very puzzling.  While I was in New Zealand, I learned of two cases that seemed emblematic of the Mailerian developments in the new Zealand criminal justice system.

The first concerned a man with 102 convictions, many for violence including rape. (I should point out that 102 convictions means many more offences, since the conviction rate is never 100 per cent of the offending rate, and is sometimes only 5 or 10 per cent of it.)  This man nevertheless became eligible for parole. As conditions of parole, the board told him he must not drink, smoke cannabis or frequent certain places. The man told the board that he would abide by none of these conditions, but he was released on parole anyway. Within a short time, he had killed three people and so maimed a fourth that she will never recover.  

The second case was of a man with many previous convictions, some for violence, who abducted and murdered a young woman aged 24. He was imprisoned and applied for bail. Three times he was turned down, but a fourth judge granted him bail. He was sent to live at a certain address, where he befriended his neighbours, who did not know that he was accused of murder. Eight months later, while babysitting their children, he killed one of them.  

Perhaps the most extraordinary twist of this terrible tale is that the parents of the murdered child then had another baby, which the social services then removed from them on the grounds that they had previously entrusted a child to the care of a murderer and were therefore irresponsible parents. The state blames its citizens for the mistakes – if that is what they are – that it makes.  

What lies behind this terrible, wilful incompetence? I suppose some people might say that anecdotes mean nothing; that it is statistics we have to look at, and the majority of people sent out on parole, or on bail for murder, do not kill again. The questions we should be asking are what proportion of people who say in advance that they have no intention of abiding by parole conditions go on to commit serious crimes if granted parole anyway, and what proportion of accused murderers granted bail kill again while on bail. In the light of these questions, the decisions taken in the two cases I have cited might appear slightly less absurd.  

This is dust in our eyes, however. The presumption must be against someone who has been convicted of 102 previous offences, many of them violent, or someone who has been convicted of many previous offences and is suspected on the strongest possible grounds of having killed. It is morally frivolous to suggest otherwise.  

In other words, the moral frivolity of the New Zealand criminal justice system could not have been more plainly demonstrated than in these two cases. (On the day before my departure from the country, a young man, also with a long record, who attacked an old woman in her eighties, and fractured her facial bones in two places, having first given her what he called ‘a king hit’ – that is to say a single punch that felled her – was sentences to a year’s imprisonment, which, with remission, will mean he will be at liberty in less than six months.)

The question arises, Where does this moral frivolity come from?  The judges in New Zealand are not entirely to blame, since they have to sentence according to guidelines laid down for them. They cannot impose any sentence that they happen to think is just. But they do not protest against guidelines that are patently absurd. Nor was there any reason why the fourth judge should have granted bail in the first case I described. Therefore the judges cannot absolve themselves entirely of responsibility. 

Lying behind the frivolity of the New Zealand criminal justice system (which also infects the British system) is a willingness to ignore, or an unwillingness to take seriously, the most obvious prognostic signs, or even to take considerations of justice into account. Just as Mailer failed completely to recognise the significance of the passage in Abbott’s book, which after all was composed of letters to himself, that I have quoted above, so the judges and others in New Zealand ignored the most obvious considerations in their dealings with the criminals before them. Their own reputation for generosity of spirit and lack of vengefulness was more important to them than protection of the public.  

Lying in a layer of the mind yet deeper than this desire for approbation is the baleful influence of Rousseau’s idea that Man is or would be good but for the influence of society upon him. If this is the case, then the murderers in the cases I have cited were as much victims as their victims, and the society which has thus victimised them has no moral right to treat them harshly. Rather, it must reform, indeed perfect, itself. Until it does so, it ought to expect cases of the kind I have described.  

This, of course, was precisely Abbott’s [Mailer’s protege murderer, who murdered again while being feted by the literary set] point in his letters to Mailer. He said that society had made him the way he was, and thus had no right to point the finger at him; throughout the book, he alluded in a moral fashion only to what had been done to him, never what he had done.  There is no doubt, of course, that most criminals come from a very bad background (though it does not follow, thank God, that everybody from a bad background is a criminal, else we should none of us be safe in our beds).

Of course, where the bad background itself comes from is another question, and much disputed. I think in large part it comes from the intellectual and moral zeitgeist that intellectuals have created. But the undoubted fact cited above has confused us utterly, and caused us to confute two questions: first, how do we prevent people from becoming criminals in the first place, and second, how do we prevent those who have become recidivist criminals from committing further crimes? The two questions have different answers, and there is not a single answer to them both. When, however, we mistake the first question for the second, and the second for the first, we end up making Mailer’s, and the New Zealand criminal justice system’s, mistakes, over and over again.  

One thing is evident, however: those who make the mistakes do not pay the price for them. They feel the warmth of generosity without feeling the cool current of responsibility.”