I can't understand how Bill Gates stays rich when his company can produce something as spectacularly irritating as the latest version of internet explorer. I've lost all my Favourites (though I suppose they are still there somewhere). Perhaps if I was under 30 I'd find them by intuition. Don't upgrade until they've had some adult rebuild it for adults.

Yesterday's post prompted a friend to tell me of her experience as a juror. On reflection yesterday's post was too unqualified.  I'm guilty of what I've often railed about  – urging judges to action "as if the problem [of bias from information gained outside the courtroom] does not exist or will go away if we are fervent enough in our belief that it should not be there" (to adopt my criticism in a recent post). 

The friend explained that of course she'd done her own internet research at home. She discovered the offender's previous similar offenses. She used that information to counter  absurd pop psychology theories of another juror. Her research comforted her on the jury's eventual consensus conviction, though she thought the court evidence would have supported convictions on more serious charges. She found the jury process unsettling, because of the poor logic (and intellect) on display. The judge had warned the jury that they must not do their own research, but she thought most people of her age on juries would routinely ignore that. For them, googling in uncertainty is just too ingrained.

Her story reminded me of how much more is needed, urgently, than simple assertions of confidence in the power of court processes to minimise the influence of unbalanced external information. We can't stuff the empowering internet information genie back into its bottle. It is overdue for judges to revise procedures so the court (in particular prosecution and defence lawyers) can:

a)  invite the jury to disclose the information and theories they think relevant, which have originated other than in the formal court elucidation of evidence;

b) adduce balancing information;

c) discuss with the jury those theories and information to put it in context, and

d) ensure the judge can address that 'extraneous' material with specific directions.

The Court of Appeal decision is clear, as Kiwiblog says – "Thank God".

 Ups too for going out of their way to commend Potter J's conduct of the trial, and their affirmation of  Weatherston's defence counsel (Greg King and Judith Ablett-Kerr) given the public hostility they had to face.

The decision nevertheless missed an opportunity. I long to see in an appeal judgment on a miscarriage challenge, or a suppression case something along the following lines:

“We observe that it will be rare indeed where we will entertain arguments to curtail rights of free speech and open justice because of a speculative risk that a court outcome is affected more by what is said outside the courtroom than what is heard in it. We judges must cease to accept without proof presumptive claims that juries are so fragile(and judges so vulnerable) to pre-trial disclosure and publicity and  biased or hostile comment that the integrity of the trials can only be assumed in a world of suppressed speech.

It is time to remind ourselves that we all come to trials with our pre-existing knowledge, experiences and preferences. Our task is to take account of that as an inevitable part of being human, and then to strive for objectivity nevertheless. It is idle to demand of our justice system that it must operate as if we are black boxes, computing the evidence and the arguments and the law solely on the data input during the trial.

Centuries of evolution of British justice's rules of procedure and of evidence have been expressly directed to counter-acting potentially prejudicial influences. There is no evidence that media or other publicity is uniquely more powerful or malign than the other pre-existing influences dealt with by the deliberate thoughtfulness of our courts.

We have confidence in our procedures, in the rules of evidence, in the respect of juries for their role, in the objectivity and rationality of judges, in the atmosphere of calm deliberation that should prevail in our courts, in the time and care taken to substantiate and to test claims and assertions and beliefs.

Attempts to suppress comment and name suppression and demands that jurors not search the web are are probably now vain. Powers enlarged to try to make them effective could someday be misused for purposes dangerous to confidence in the incorruptibility and independence of the Courts.

Accordingly  we will not be impressed by allegations of  a nebulous prejudice from intense public interest and debate. Trials should not be aborted or cases reheard in the absence of compelling evidence of actual unmerited prejudice”.

The Maxim Institute has asked whether I support the Regulatory Responsibility Bill. They fear that it will encourage judicial activism. Their question was prompted by my May post on the flag-burning decision.

That concluded – "When judges rule that the NZ Bill of Rights allows them to say that clear Parliamentary words do not mean what they say they accelerate four bad trends:
· legislator contempt for judicial reasoning.  MPs can interpret demands from judges that Parliament respect "the rule of law" as just a mask for judicial  dislike of democracy, an ambition to usurp elected law-makers;
· a law drafting style that spells out rules in ridiculous detail, lest judges abuse discretion by negating the Parliamentary intention;
· public mistrust of judicial common sense and values; and,
· Police cynicism about strict adherence to a rule of law which is the plaything of judges. When Police lose respect for judges they can justify extra-legal conduct to keep the peace and to protect the reasonable expectations of innocent people.
None of these consequences add to respect for the Bill of Rights."

Maxim published a paper by Richard Ekins and Chye Huang  critical of the Regulatory Responsibility Bill. Their grounds include concerns about the role it gives judges in issuing declarations of inconsistency and the way it replicates the interpretative direction in the BORA.

The paper is an extraordinarily well written compendium of the arguments against the Bill.

Nevertheless I think its conclusions are wrong.  It suffers from unworldliness, the factor that prompted the Irish farmer to respond to the request for directions to Dublin with “Well I would not start from here”.

I too am anxious about recent constitutional usurpations by an intellectually unpersuasive Supreme Court.  But I would deal with those anxieties by a few simple amendments to the Bill, reminding the judges directly what they should not do, to respect our rule of law and constitution. Such a reminder from the legislature is overdue. This Bill extending  the Judges' role would be as good a place as any in which to deliver it.

The Maxim paper authors essentially say to the promoters of the RRB ‘you have not proven things are broken and anyway there are better ways to fix it’. Both may be true to varying extents. But they are irrelevant observations. They assume a willingness and a capacity and an opportunity  to be systematic and thorough in evaluating a constitutional problem. That is not how consitutions evolve. Upgrading the rules that might influence the quality and the processes of legislation will almost always be opportunistic.

None of the implicit Ekins and Huang desiderata are present. Nor are they likely to be in any form that would result in the kind of actions that they imagine. Constitutional reforms, and indeed reforms in almost any government processes come only in crisis, or from the drive of one or two people who find a happy coincidence of political sponsor and the alignment of political planets for opportunity. None of those factors is visible outside the current opportunity. Indeed the current constitutional reform exercise that National has promised the Maori party is likely to make rational reform even more unlikely, as it explores tender points for all participants.

So to me the Maxim article exemplifies the old saying, “the best is enemy of the good”.

On the substantive concern that it could exacerbate the current problem of over-mighty judges acting in ignorance, I also differ. The judges are doing it anyway. Ngati Apa, the cases mentioned in the article and others show courts naively extending their traditional role into territory where lions fear to tread. 

But I think it is always better to acknowledge and to channel safely such natural pressures and ambitions. It does not work to act as if they do not exist or will go away if we are fervent enough in our belief that they should not be there.

I think the RRB instruction to apply an interpretative assumption is a sensible way to infuse desired principles across legislation. I think, for example, it worked as it should in the Court of Appeal’s decision in Moonen and the other cases on the disgraceful censor’s attempts to ban Christian free speech.

So I would make strong and plain the procedures for getting the advisory opinions of the court on consistency, and strengthen the strictures against them also expanding their intended interpretative bias to the point where it makes plain words a nonsense. I would be happy to see that interpretative bias apply only pro-actively (not retrospectively).

The risks have already matured. To me the article displays our  wide-spread inability to recognise that in political and policy matters the optimum is only a mildly useful benchmark. It should never substitute for the real counterfactuals.  

Jack Hodder SC delivered at a recent conference a compelling explanation of his strong support for the RRB. He tells me a paper with those arguments will be published this year. Ask him for a pre-publication copy if you want to balance the views of lawyers who would rather see no change in a bad trend than a change they fear will be less than perfect.
 

The protesting criminal defence lawyers have a point. The partial replacement of independent barristers by state employees could abet a repressive government.

But until the bench and bar accept their responsibility for the disgraceful game they've made out of our criminal law, the protestors will get little traction. Indeed the Minister of Justice will probably gather more support for National the more rudely he rebuffs them. Today's DomPost editorial sums up informed public reaction.

When the judges and the profession propose substantial reforms they might deserve a hearing. They've allowed the time from arrest to trial to balloon. The Urewera terrorists delay is outrageous, but any delay of more than a few months is scandalous. Typical delays of a year should have them burning with protest zeal. Instead of changing the way they judge (for judges) or coming up with reforms (in the case of the bar) they confine themselves to opposing most of the material changes the Minister has explored.

Similarly they do not deserve consideration while they remain indifferent to the huge expense of pandering to their belief that what they do is so important that it is immoral to subject it to cost benefit assessment.

There are many changes that could trim time and cost, in ways with little bearing on the only vital priorities –  avoiding conviction of the innocent, and promoting conviction of the guilty.

All that most New Zealanders know of US criminal justice is that they are said to have a higher percentage of their population locked up than us. We are alleged to have the second highest percentage in the 'western' world.

Unfortunately we are not in the same class as the US, despite our incarceration  trajectory. 

We do not have the "wonderful puzzle" of crime rates falling to half the rate 20 years ago. Incarceration appears to be working in the US. 

Here is how the New York Times puzzled over the success of US criminal justice policy on 23 May:

In all regions, the country appears to be safer. The odds of being murdered or robbed are now less than half of what they were in the early 1990s, when violent crime peaked in the United States.  Small towns, especially, are seeing far fewer murders: In cities with populations under 10,000, the number plunged by more than 25 percent last year….

Criminology experts said they were surprised and impressed by the national numbers, issued on Monday by the Federal Bureau of Investigation and based on data from more than 13,000 law-enforcement agencies.  They said the decline nationally in the number of violent crimes, by 5.5 percent, raised the question, at least in some places, of to what extent crime could continue to fall — or at least fall at the same pace as the past two years. Violent crimes fell nearly the same amount in 2009.

“Remarkable,” said James Alan Fox, a criminologist at Northeastern University.  “Given the fact that we have had some healthy declines in recent years, I fully expected that the improvement would slow.  There is only so much air you can squeeze out of a balloon.”

There was no immediate consensus to explain the drop.  But some experts said the figures collided with theories about correlations between crime, unemployment and the number of people in prison.

Take robbery: The nation has endured a devastating economic crisis, but robberies fell 9.5 percent last year, after dropping 8 percent the year before. “Striking,” said Alfred Blumstein, a professor and a criminologist at the Heinz College at Carnegie Mellon University, because it came “at a time when everyone anticipated it could be going up because of the recession.”

For a quick introduction to the quality of discussion you can find on criminal justice matters in the US, check the comments on a blog post on that article here, and bookmark Prof Douglas Berman's home page and the blog "Crime and Consequences" of the Sacramento based Criminal Justice Legal Foundation.

There is to me not much mystery in the different outcome in New Zealand. The US has tackled the gambling preference that distinguishes criminals. Our baffled criminologists persist in thinking that if they are only well-meaning enough, and give enough power to the judges, and corrections officials to be nice to offenders, some day it will pay off.

There is no mystery in the US experience if it is seen as a rational human response to the change in the speed and certainty of consequences for crime. Most of the cahnges of the last 20 years have increased the certainty of detection, conviction and punishment.

A perceived increase in severity may help, but it is much more likely that certainty is what matters.

Great to hear the coverage this morning on National Radio of the UK revolt against suppression orders.  Colin Peacock and Jeremy Rose covered it well in Mediawatch on Chris Laidlaw's Sunday Morning programme.

Still odd that they are so cautious in their coverage of the implications for New Zealand. Cam Slater's campaign is not over. The feeble reform Simon Power initiated will not solve anything. The combination of suppression orders and privacy law have seriously eroded free speech. The current law, even if the feeble changes are made,  facilitates corruption. It will continue to increase cynicism about the integrity of judges and the legal establishment generally. 

The risk has not been ameliorated this year by the new Code that governs private investigators. It maintained restrictions (with minor relaxation) on private detective surveillance, including use of cameras, where it would be lawful for ordinary citizens. See the Hansard discussion on last year's law change for a sample of Parliamentary indifference to freedom.

Funny  they did not ask host Chris Laidlaw for comment. He has expert insights. He could help ensure there is reform some day.

I would not erect a Wellywood sign if it were my property. But the airport land is not mine. It is mainly owned by the shareholders of Infratil. Their stewards (the directors) presumably consider that it is good for their business, and for Wellington, to install the sign.

That is just about  all that should matter.

I guess the directors have evidence, or have been persuaded, that the sign will be a cheap and concise way to remind people of the astonishing fact that our city is a major force in the world cinema industry,  But even if the directors are dead wrong they should go ahead, to assert both freedom and property rights.

Both are far more important than the embarassment of the precious Wellington set now baying for censorship of bad taste. I'm not sure David Farrar is doing more than showing pinkish tribal loyalties in his distaste for the sign, but many of those who've commented on his post could easily enjoy a book-burning.

How funny to see their steaming indignation. It is in the long tradition of effete class consciousness.  Proclaiming offense to aesthetic and cultural sensitivities is a handy way to fend off the ever-present fear of being thought "common". My friend Denis Dutton saw art appreciation as evolutionarily developed but he nevertheless scorned those who were drawn to use suppression powers in support of their anxious clinging to social status.  Many of Wellington's "intelligentsia" define themselves and their social boundaries by what they collectively decide to detest.

'Wellywood' pushes more than one of their class buttons – among them abhorence of being thought imitative (though they are desperate not to be thought unaware of any developing cultural badge). Hostility to the US is another. Plays on the term "Hollywood" are like plays on the word "Silicon". They admit the primacy of the original area of innovation.  "Silicon" of course relates to computing. Bollywood has long signified a concentration of film industry power. 

But for the Wellington intelligentsia there is a special problem. It is only recently that many of them have been able to concede that Hollywood had anything to admire. They've told each other for years that it makes only crassly commercial stuff, inferior to the gloomy output of the miserable French and other folk  who produce art movies.

Thanks to Sir Peter Jackson, the sign may not matter much. The genuine creatives in Miramar can go on producing the wealth that is miraculously floating the Wellington economy. I guess many of them will not be too impressed with the sign, but as they are creating world class work, rather than talking about it, they'll ignore the intolerance and meagre vision of those with more time and less creativity.

The loony gym dance master caught attention when he replaced Graham Henry and the team, but it is a relief not to have to endure the yelling instructor give the pre-flight warnings, even though we're back to the team.

I've heard several friends quietly pleased to see the exposure of the "Faith Unit" at Rimutaka Prison as not seeming to produce lower recidivism rates. They've had to endure prison 'reformers' criticisms for being too focussed on justice for victims and not enough on rehabilitation so they think this set of reformers had it coming.

I do not share that schadenfreude. I've seen nothing reported so far to justify closing the faith unit. I'm suspicious of the reported reasoning, though googling Rimutaka and faith unit in Stuff shows plenty of controversy

Kim Workman has strongly supported the controversial unit. I've never found Kim to be offensive, though I disagree profoundly with him

We humans all weight factors differently depending on our predispositions, and we will disregard inconvenient information if given any excuse – such as that it has some element of judgment or is open to different interpretations. I think Kim is better at rationalising his support for the improbable than most. But I urge tolerance.

Sooner than we think the loopy "justice as therapy" experiment will end. Our orthodox thinking in this area will be again the establishment orthodoxy.  We should expect and demand for as long as we are able to influence things, that the establishment resist the kind of group-think that has got the current lot into today’s predicament, where rather than re-examine their premises they are desperately defending a system that instructs ordinary people to lie, has judges lying as a matter of policy, is callous to victims, and is grotesquely expensive and ineffective.

We should respect people who persist in disagreeing with us, because we should foster a regime that allows for experiment and a range of approaches. We suffer in this country because we have one monolithic Police force, and one Corrections.

So I am sorry to see the threats to the existence at Rimutaka of the Faith Unit. Though it is creditworthy that Corrections is measuring the effects of different regimes on recidivism rates, and has publicised the lack of apparent effect of the Faith unit at Rimutaka, such a measure alone seems poor justification for ending the Faith unit’s existence, or interfering too much in its administration. I’m suspicious of the motives of Rimutaka management. I’d want to know that it was actually harming, or costing much more, or that there was some other downside before I’d support ending its existence.

I doubt that recidivism alone is enough of a measure. We should know also the relative success of those who do not reoffend. It could be worth having the faith unit if they are more successful in holding down jobs and supporting their families than other prison graduates (acknowledging the difficulties in deriving control groups for comparison). 

I’m also concerned that Rimutaka Prison has such embedded corruption that the real reason for hostility to the faith unit could be that its staff are feared because they stand apart from those who are in the rest of the prison. Perhaps they are thought likely to nark on misconduct?

 How have the various race based programmes (Tikanga Maori units) fared under the kind of scrutiny given to the faith unit? Have they been measured?

I am an atheist, but I detect widespread hypocrisy among people strident in their hostility to suspected ‘cultural’ insensitivity who vengefully support discrimination against any timid assertions of our mainstream cultural tradition known as Christianity.