The most depressing element of the hopeless way our courts have dealt with the Urewera terror charges may be in the fine print of their reasoning tossing out Police evidence.

There is ineffable arrogance in deciding the the interests of victims and potential victims rank behind the Court interest in sending a stern message to the Police about the things they think the Police should not do. Instead of asserting or seeking powers to penalise the allegedly improper Police conduct, they reward offenders and punish the innocent. And these are the people with the effrontery to lecture us about "proportionality" in citizen responses to criminal aggression.

Secondly, the reasoning takes us even further from our great British inheritance that held the Police were not a praetorian guard, with special legal status. Instead they were just citizens doing fulltime what all decent citizens could and would do when faced with crime. Sadly the Supreme Court has said that the Police have more limited rights than the rest of us except as expressly stated in legislation. What a constitutional muddle we are getting from the Wilson Court

So people who refuse to respond to accusations are regarded with justified suspicion, especially where they will have ample time and invitation to set out all the detail.

I'm sorry that some in ACT have reneged on the policy I worked for in Parliament, according to Stuff.

 That policy to end the "so-called right to silence" (Ted Thomas J's description of it) took into account the UK experience after ending it more than a decade earlier. It considered the academic writing on both sides (retired NZ judges from both sides of the  left/right spectrum considered it to be a poseur right). But mostly it flowed from my determination to focus our policy back on to increasing the availability to courts of the truth, the whole truth and nothing but the truth.

Most of the lay opposition to its abolition is out of a misconception that a right to silence would be replaced by a rule forcing people to give evidence. It would not. An accused could remain silent still. The only change could be that the court is permitted to recognise and draw inferences from a failure to expose yourself to cross-examination.

 Such a reform would simply recognise a common sense reasoning that probably finds its way into many (but unfortunately not all) jury findings despite vain judicial instructions not to take it into account. That reasoning is that the person in the court in the best position to know what really happened involving him is the defendant. If he has counsel hounding other witnesses with potentially spurious theories about what happened but declines to offer his own evidence, or to expose himself to questioning, then the court is deprived of the most direct account of the truth.

I’ve discussed the issues with a number in the criminal bar who oppose the change. None of them were persuasive on ways it will increase the risk of false conviction. I sum up their opposition as being based on the fervent belief that they are engaged in a noble game and that it is unfair to change its rules to disadvantage the accused, irrespective of whether the accused is actually guilty or innocent.

Claiming that a procedure is fundamental is the standard reaction of lawyers to change, with no connection to the primary concern of a sound criminal law – that is reducing to a minimum the wrongful conviction of the innocent while meeting the reasonable expectations of victims and the rest of us – that the guilty will usually be found out.

Remember – the law has to be pragmatic. There are many rules that work on probabilities, balancing costs against each other. It may be better that 9 guilty go free than one innocent be convicted. But it is not better that 100 guilty go free than one innocent be convicted. We know that justice miscarries. That does not mean we can abandon consideration of the effects on confidence in it, and its cost, if there are offensive displays in court facilitated by the immunity of an accused from being asked about his own conduct, while he can challenge all others’ accounts.

The right to demand that judges and juries ignore your failure to answer obvious questions is not a foundation element of the presumption of innocence. 

Previous posts on this topic are here and here
  

Have the airports decided that price control may be inevitable, and they might as well be hung for a sheep as for a lamb? Are they gambling on getting a major pricing increase in before control cuts in, so they start from a higher base?

Why else would they go for price increases that are so far above what the Commerce Commission has signalled as the appropriate level?

At present they are only subject to disclosure regulation. But the Commission's announced input methodology for regulated disclosure could be simply converted to price control. The Stuff report quotes Air New Zealand CEO Rob Fyfe as surprised that Wellington airport had been "quite so flagrant in their disregard" of the commission's guidelines.  

If Wellington Airport has adopted what it describes as its actual cost of capital of 11.3 per cent a year, when the Commerce Commission methodology says an appropriate figure for airports is 7.8 per cent,  the gloves are clearly off.

The airports, and the lines companies and other bodies appealing against the Commission's announced methodologies may be counting on tying the courts up in procedural knots for the foreseeable future, so that the new methodologies are not applied. The new  merits review regime in the Commerce Act was supposed to prevent such gaming of the law for companies subject to price control (making it theoretically profitless by applying methodologies under challenge in the interim).

Perhaps the monopolies believe they have found ways to persuade the Courts to sidestep that anti-gaming provision.

Or perhaps for the airports at least there is a more simple calculation. The report mentions Court hearings in October. They are on the Commission's procedures, not the substantive methodology decision. It is now likely there will not be an outcome to substantive argument before 3rd quarter 2012. And then there will be appeals. So a methodology that Parliament meant to apply from 2010 could be in limbo for years to come.

Perhaps the airports calculate that price control is unlikely to be imposed while the methodology remains under challenge. They could feel that they should go for broke in pricing while they have the Commission tangled in court.  This theory would make sense of procedural challenges and advocacy for long delayed hearings, after an initial argument to the courts that airport matters demanded quick resolution, so much so that they should be separated out from appeals against methodologies for other sectors, and heard by a separate court.

The early airport position and their later arguments have not hung well together. The theory above would explain the discrepancy.

Disclosure – Franks & Ogilvie is acting for user/consumer parties (represented by MEUG) in appeals against the Commission's announced input methodologies.

Should anti-war sentiments be in the thread on a NZ Army Facebook tribute post on SAS member Doug Grant? The outraged comment on Tina Nixon's Facebook page says not. I not so sure, though I hope I would have the courtesy to express judgment of the dead after a more decent interval, and with less moral certitude .

 I disagree with the comment itself completely. As explained two years ago I support the mission of our SAS. I have personal reasons to respect SAS soldiiers. But I think there is a serious risk to the vitality of our public discourse if 'punishment' follows the consensus that  Sumner Burstyn has gone beyond the pale with the following comments::

" What's up with all of you – I bet this solider for hire did not show the same respect for the men, women and children he killed and what's with all the mixed messages: "He was a thinker, a deep thinker." I don't think so. He was a paid murderer in a war we have no truck with. A father who was happy to kill. "He was a free spirit" No, don't think so – he was a man who took orders. Get real."

It is legitimate to ask a soldier if his mission is proper, sufficient to justify the exception to our normal taboo on murder. The question is properly directed at his political masters, but  the Afghanistan engagement is reportedly also a voluntary committment of our SAS.

But more importantly I've been reflecting on the risks that we delude ourselves on many things when we fail to debate matters that should be debated because it could offend. The recent funeral for Sir Paul Reeves offfers an example.

There is no pressing need to upset mourners by dissenting from the eulogies. But if that kind of respect evolves to become a barrier to critical appraisal, we risk deluding ourselves about our own past and our own future.

I'd like to see, for example, while it is still relevant, an objective critique of the Fiji constitution that Sir Paul was instrumental in pinning to that country. If it was overly idealistic and over-emboldened Chaudry, it might share the blame for the conditions that produced Bainamarama.

I do not recall ever thinking that Sir Paul was especially wise. Outstandingly courteous, decent, humble (except with respect to the validity of some of his convictions) and capable of nobility in sentiment – yes. But I do not think that his political perspicacity was adequate to the load that it had to carry in some of his roles. The Anglican Church's odd current constitution may not be his creation, but it happened while he was influential.

There must be no reverence for the dead that leaves us unable to challenge their influence and their legacy, including while any unhealthy worshipful pattern is emerging.

Murray McCully and his colleagues should be pleased. The losses to South Africa and now Australia should push foreign impulse travellers over their decision threshholds – it should be a real tournament. It will be worth coming. They may not have to endure Kiwi triumphalism in its home territory. 

An All Black loss will not necessarily hurt National in the polls. When people are upset, afraid, feeling insecure about the future, they o turn to what they know as long as it has not lost credibility (or gone past its use-by). If they have an underlying feeling that they are in worrying times they certainly will not turn to a Labour Party that projects no strong leadership.

On the other hand if the Cup gamble for the government does not pay off financially and they have to stump up for all the shortfalls that will flow from serious over expectation of visitor numbers and visitor spending, blame will fall to the government. They've invested too much in hyping it to escape scot-free if attendances disappoint.

James Allan in The Spectator crystallizes some thoughts that have been niggling for some time – my weekly copy of The Economist is taking less time to read.

Why?

Because there are more and more chunks of it that detain me for more little more than a glance. I can rattle through many issues in an hour or less. Their coverage is in those areas too predictable, too reflective of the fashionable media consensus and accordingly less arresting. Their US coverage has always let them down, discreetly  parroting the US MSM 'liberal' despair at the irredeemable masses who keep the Republicans in contention.

But as James Allan notes, a similar line and tone is infusing other coverage. Take for example the superior (supercilious) commentary on the recent UK  rioting. Nowhere in their comments on the implications for UK politics,and  criminal justice, is there a hint of the core insight of Theodore Dalrymple in the Spectator, that all the therapeutic justice prescription in the world is irrelevant while rulers do not understand that criminality is fun. To create and maintain a climate in which such fun is unthinkable, the justice system must ensure that it costs too much to indulge in. Simple really.

For the present the Economist remains indispensable. It is still the best digest I know of events and things worth keeping up with outside my professional sphere of interest. But the less penetrating journalism will make it easy to discard the subscription when my tablet, and the ability to put together my own automatic delivery of best pieces on selected topics from around the world, can fill that need.

Last evening at 3 minutes to 9 I emailed a request to an IRD manager. She replied (not an auto-response) at 6-23 am this morning.

Look out tax dodgers if that stakhanovite spirit is seeping through the IRD.

As we'd say in NZ to Alexei Stakhanov – "That [wo]man deserves a DB".

For centuries some of the world's most well meaning people killed those they set out to help, by cutting veins and draining their blood when they were ill, on the theory that there was something in blood that harmed people, so it would help to ensure there was less of it. If they did not get better after losing the first bowl of blood, then more was taken from a fresh vein.

Brian Gaynor  shows himself to be a worthy blood-letter in todays's Stuff story on the widening pay gap between senior management, and ordinary workers. Twenty years ago he was among those demanding that the Minister of Justice, Doug Graham, force companies to disclose executive pay.  He succeeded. As reported today he shows no reflection on why the outcome has been the opposite of what he expected. He urges more disclosure, to ape the Americans. Whether or not that foolishness is compounded, we are already heading to where the US is. The US pay gap between the big company CEOs and the average low level workers in their employ, has reached as much as 100x. The Stuff report says ours is now 50x.

I agree with Helen Kelly that these multiples are a "moral question of our time".  She is right to complain.

I warned of the likely outcome when the law was passed, and have come back to the issue a number of times, including  here and here. I've advised boards in fights with senior executives over pay and employment terms. I've sat with my fellow directors when CEO and senior remuneration policy is being determined. I've seen how dissociated their pay has become from supply/demand market. pricing for the expecutive. Instead, because it is public, it has become a statement of where the company pitches its ambitions against its competitors. How many Boards are going to state publicly that their ambition for their company is to rank in the bottom quartile of their peer group?

In the1980s that dissociation took off in the English speaking world, coinciding with the new laws forcing disclosure. Here in New Zealand we foolishly took director pay out of the tiny list of things that must be decided by shareholders, and forced companies to make their top pay policies public.

Expect the widening gap to remain a source of puzzlement and ill-feeling for the foreseeable future, because I can't see any politician who will have the courage to return the decision on executive pay disclosure to where it belongs, the shareholders.

Janet Albrechtsen in the Australian predicts John Ansell's likely fate (though she may never have heard of him) for disturbing the orthodoxy on the proper pieties in race matters.

He will be totsched. 

What does that mean? You will have to read Albrecthsen.  I'll not try to capture the essence of a piece that is itself so compressed.