I just discovered the draft of this, which I had obviously intended to publish earlier but had then forgotten, probably due to the Great Phone Fiasco. It doesn’t fit in here particularly well but it’s all part of my attempt to document the farcical aspects of our political system here in Australia.  Regrettably, it seems relevant to all of those countries such as the UK and the USA that have their roots in the ‘Westminster’ system.

You will already know that I believe that the legal profession, in its present form, generally causes more harm than good. Its practitioners should, therefore, be banned absolutely from positions in government at all levels. People should choose; acceptance at the bar should automatically incur a lifetime ban from parliamentary service.

I think that some justification for this view is needed.

We already know that ‘justice’ goes in general to those with the deepest pockets. It is absurd to suggest that, as in the current Australian banking fiasco, people would pay ludicrous sums to certain barristers unless they felt that their chances of a favourable outcome under the law were thereby significantly enhanced.

And I am aware of at least one scandalous incident in which a company in the UK was bankrupted by the cost of defending its patented processes from being flagrantly copied by its richer competitor – who could afford to string out the proceedings by a series of legal delaying tactics and thus escaped any penalty and was able to buy the assets of the complainant company – including its patents – for a derisive sum.

That is not justice.

In criminal law, once again in the UK, some time ago – just after the ‘Age of Discrimination’ (when that word still meant informed, sensible choice and had not had its meaning bastardised to indicate some derogatory action) had just been lowered from 21 years to 18 – two young men aged 16 and 18 were caught by a police officer on a rooftop where they ought not to have been.

The 16 year old produced a gun; shot and killed the policeman. But he was a minor, so could not be sentenced to capital punishment. The 18 year old, who had harmed no one and may not have even known that the other had a gun, was now not a minor (though a few weeks earlier he and anyone else less than 21 years old would have been considered one) so they hanged him.

No one who is interested in justice could possibly condone such an outcome. It was not justice, it was spite. I am quite sure that there are many similar cases to those described above, in both civil and criminal law.

There is NO requirement in either English nor Australian law that justice shall supersede legal process. This situation can only have been created by the actions of the lawyers and will never be corrected until government decisions are taken without interference from the legal profession.

In times past, when people came before the King at the King’s Bench they did not ask for a legally approved decision, they asked for justice. Justice does not seem to play a significant role in the present Australian legal system – nor in that of any ‘western’ nation.

Too little weight is given to intention and too much to outcome.

In cases involving death or injury the desire for revenge often looms larger than considerations of whether the perpetrator intended harm, or could have reasonably foreseen that his, her, or their actions would result in harm. In a recent case someone was jailed for 2 years for being momentarily inattentive. He was driving; glanced down at his navigation screen; and missed a ‘give way’ sign. The resulting accident caused deaths and the relatives of the victims screamed for him to be punished more harshly. That is understandable because of their grief. It is totally irrational in view of the action that caused the deaths. In fact the jail term is grossly excessive.

Anyone who drives and claims never to have made a mistake is either too stupid to know when they have done so, or a liar. And the liar is the safer of the two; he or she may learn how to avoid that mistake in future. Intelligent people are just grateful that luck or the quick actions of other road users has saved them from the possible consequences of their inevitable mistakes.

The courts have some strange ideas. Learner drivers are required to display ‘L’ plates conspicuously, so that other drivers may make allowance for their lack of skill and experience. Yet I recall a case where a driver collided with the rear of an ‘L plated car when the learner driver stopped for an amber traffic light (they are NOT ‘orange’ and I refuse to call them that). The non-learner claimed that the accident was caused by the fact that an experienced driver would not have stopped so soon after the light changed. And the magistrates apparently agreed! Why? The whole point of ‘L’ plates is that experienced drivers should allow plenty or room for the learner to make mistakes – or in this case to obey a law that is disregarded by many experienced drivers. No justice there.

Yet we see reports of lawyers and lawmakers discussing special penalties for ‘one-punch’ crimes. If you deliberately cause harm by punching someone what on earth does the number of punches matter? The deliberate intention is to cause harm and harm has been caused. We might allow for the fact that someone throws a punch that could not possibly cause significant injury but in the case of a deliberate, full blooded swipe at some one the punishment should be severe. Whether the injured person dies or is simply injured is a matter of chance. The punishment should not be.

Of course, in the past when someone was badly injured by a deliberate assault the police would wait eagerly to see if the victim died, because then they could get the aggressor hanged for murder. If the victim lived – no matter how grievous the injuries or permanent the harm – the aggressor would only face a lesser charge. Luck is not an appropriate factor where justice is the aim.

I think that before being qualified to vote, every citizen should be required to attend a number of court proceedings and be an observer at several jury deliberations. Both of these experiences are enlightening, though depressing to anyone who thought that rational reasoning and attention to facts carried much weight in such activities. This experience might make people realise how little the outcome of any legal process depends on fact and fairness and how much on prejudice and greed.

I am tempted to suggest that every convicted person should have the right to appeal to a random body of people who are neither lawyers nor politicians, with the question ‘Is this a just outcome?’ And for their conviction to be negated if the answer is ‘No’. Unfortunately my own observations in courtrooms and on jury service have left me with little confidence in the ability or desire of the general public to produce a rational response to that question, based solely on the evidence presented.

Another thing that concerns me is the disconnect between stipulated punishment and actuality. A stipulated punishment might be a number of years’ imprisonment. The actuality will also include subsequent branding for life as an ‘ex-con’, subject to police suspicion and interference and suffering detriment to his or her employment prospects.

I suppose that if you are a particularly saintly person you may think this not unreasonable. If, like most of us, you have ‘sailed close to the wind’ and got away with it – perhaps performed some act that you know to be dishonest although not technically illegal or maybe illegal but unprovable, you ought to admit that those people are no worse than you and and should not be hampered in their subsequent lives in that way.

Another indefensible stupidity is the way in which ‘companies’ are punished for breaking the law – on the rare occasions when they are. Companies don’t make decisions; people within companies make decisions. Companies do not take actions; people within companies take actions. If those decisions or those actions result in monies to which it is not entitled flowing into the company, the people taking those decisions or performing those actions are behaving dishonestly and should be regarded in the same light as a person who robs a store or steals your wallet. Oh, sometimes a few heads roll, but they are generally people who have made so much money out of the business that they really don’t need any more, and usually they slide unnoticed into some equally lucrative post elsewhere.

On the rare occasions when such dishonesty is revealed it is the shareholders who are really punished and, except in the case where ownership of a large number of shares is concentrated in few hands, they have no means of controlling the miscreants and probably no knowledge of their shonky dealings. Yet neither politicians nor the legal profession are interested in correcting this stupidity and putting the people who really deserve it behind bars or, better still, imposing really substantial fines on them.

So, remove the lawyers from politics and the lawmakers will be able to make laws that protect our safety and our money, without any complicated legal gobbledegook designed to enrich lawyers and protect cheap crooks.

We could, incidentally, save an enormous amount of money this way. Any instance in which there was no obvious intention to defraud or cause deliberate harm should be dismissed at a summary hearing of the allegations, with no more than a caution to take care to avoid any repetition of the alleged offence – provided that immediate restitution of improperly obtained funds had been made or costs of any damage or treatment met.

And NOBODY should have their claims fail because their opponent can afford to pay higher fees or extend the time taken to try a case by causing technical delays. Indeed, any lawyer seen to be trying to ‘bend’ the law in favour of a client should be promptly disbarred from practising law.

It’s another fairy tale of course. Very few people are interested in justice or fairness. Otherwise they would be screaming in their thousands against the present flagrant disregard for both, by all sides of politics. But getting the lawyers out of parliament would be a good start.