A QUESTION OF *CHECKS AND BALANCES*
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The matter of libel has always presented a dilemma to lawmakers who
wish to move in the direction of a sane and just society.
On the one hand people deserve protection from false allegations. On
the other hand, people deserve the right to expose injustices by
'naming names.'
Public policy, fairness, the 'reasonable man' concept, must come into
play to strike a balance in the way the justice system deals with
issues of libel for the overall good of society.
I've already stated at some length my argument that the police are a
special case when it comes to allegations that a citizen has been
wrongly convicted, which automatically implies that those mainly
responsible for the conviction are either incompetent or corrupt.
The Gregg v. O'Gara judgment is taking us into very dangerous
territory. Its effect is to make us afraid to expose and fight
miscarriages of justice in the future, for fear of being bankrupted by
a libel suit from the public servant(s) mainly responsible for a
wrongful conviction. This is wholly unacceptable if we want to move
toward a fair and just society.
Our legal system should acknowledge that a (hopefully small)
percentage of police officers will always be willing to abuse their
power by beating or bullying confessions out of innocent prisoners and
by planting an innocent person's DNA on items taken from a crime
scene, for the purpose of obtaining 'results' and meeting 'targets'
and gaining promotion to senior ranks, at any price. This is an
important fact of life, sadly, and lawmakers should legislate
accordingly.
If we want to try to evolve toward a fair society, it is essential
that every citizen has the legal right to say a person has been
wrongly convicted, which automatically implies that one or more public
servant(s) is either incompetent or corrupt.
What it comes down to is that - in the interests of fairness and
justice - the law should decree that all police officers must accept
the possibility of being accused of either incompetence or corruption
when there is the suspicion that a citizen has been wrongly convicted,
and there should be immunity from a libel prosecution for anyone who
makes such a statement to the effect that a citizen has been wrongly
convicted. And, as illustrated by the Stefan Kiszko scandal (and many
others), to fight miscarriages of justice effectively it is necessary
to name and shame the corrupt police officer responsible, in that case
Dick Holland.
Police officers already accept that they risk their lives for the
general good. In the interests of moving toward a fair society, they
must also accept that they may be accused of either incompetence or
corruption when there is the suspicion that a citizen has been wrongly
jailed. They then can respond by stating their case publicly. However,
there should be no effective 'gagging' of protest at apparent
miscarriages of justice in the form of the risk of bankruptcy by a
libel suit against those who say a citizen has been falsely
convicted.
The case of Gregg v. O'Gara has highlighted this dilemma for
lawmakers. So far it is taking us into dangerous territory. However,
it's early days still, and if the final appeal hearing at Strasbourg
recognizes the dilemma stated here, and rules accordingly, then all
will be well that ends well.
-Peter Newman, 26 March 2008
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