Posts Tagged ‘fairness’
there’s no such thing as a fair election 2: Australia’s systems, and the real value of democracy
Canto: So let’s talk about varieties of representative democracy, because I’ve never been clear about them. Looking at the Australian experience, this government website has a summary which starts thus:
The Australian electorate has experienced three types of voting system First Past the Post, Preferential Voting and Proportional Representation (Single Transferable Vote).
The first-past-the-post system hasn’t been used in Australia since the 19th century. All our elections now use forms of preferential and proportional representation voting. Australia, incidentally is one of only three countries in the world that uses preferential voting in major elections. Under full (as opposed to optional) preferential voting, each candidate on the ballot must be given a preference, from first to last. This tends to favour major parties, whose candidates are recognisable, but it can also lead to a local election being won by a candidate with fewer votes than her major opponent.
Jacinta: Yes, this can occur when no candidate gets a majority on the first count. A second count is then held and the candidate with the least votes is excluded. That candidate’s second preferences are distributed amongst the remaining candidates. This may give the second most voted-for candidate the lead, with over 50% of the vote. Or it may put the most-voted-for candidate over the 50% line. Or neither, in which case a third count occurs, until one candidate scores over 50%.
Canto: Yes, as this shows, minor party candidates need to score highly in the first count to have much chance, as second preferences are more often than not directed (by how-to-vote cards, which they may not choose to follow) to the more high-profile major party candidates. This is why minor parties almost never win a seat in the House of Representatives, which, unlike the Senate, uses the preferential voting system. And overall, there can be a problem with this type of voting in single-member electorates, in that one party may win a few seats by large margins, while another wins many seats by a small margin, and so wins more seats while losing the popular vote. That’s of course why governments often engage in pork-barrelling to swing marginal seats.
Jacinta: Some of the concerns raised by full preferential voting can be alleviated somewhat by an optional preferential system, but that brings its own problems which we won’t go into here. Let’s look now at proportional representation, which in the Australian context is described thus on our government website:
Proportional Representation is not a single method of election, for there are a number of variations in use, including the Single Transferable Vote, two variants of which are used in Australia. One is used in Senate elections, and the Hare-Clark version….. is used for elections to the Tasmanian House of Assembly and the ACT Legislative Assembly.
The Senate model for elections is described thus:
Each state and territory acts as a single, multi-member electorate in Senate elections. In half-Senate elections six senators are elected from each state, and two from each territory. In full Senate elections, which follow a dissolution of both houses of the Parliament, 12 senators are elected from each state and two from each territory.
To be elected, a candidate must achieve a quota of votes. Without going into detail, the system provides a greater likelihood of minor parties gaining a Senate seat, and so a greater diversity of voices tends to be heard in that chamber. This also helps the Senate’s function as a ‘house of review’ as the governing party has difficulty in gaining a majority there.
Canto: In ‘Choices’, a chapter of David Deutsch’s book The beginning of infinity, proportional representation is described even more negatively than other options, as it tends to result in watered-down, compromise solutions which end up pleasing nobody and, more importantly, don’t actually solve the problem at hand. But the real issue is broader. We can try to invoke mathematics and social-choice theory to make political systems more representative, but even if this was ‘successful’, which various no-go mathematical theorems show can’t be done, the question arises as to whether the most ‘truly’ representative system will be the fairest and best. As Deutsch points out, all this argy-bargying about voting and representational systems is about input to the system rather than output in the form of good decision-making – the institution of good policy and the removal of bad policy. The creation of pathways to good policy.
Jacinta: Yes, it’s worth quoting what Deutsch, partially channelling Karl Popper, is aiming for here:
The essence of democratic decision-making is not the choice made by the system at elections, but the ideas created between elections. And elections are merely one of the many institutions whose function is to allow such ideas to be created, tested, modified and rejected. The voters are not a fount of wisdom from which the right policies can be empirically ‘derived’. They are attempting, fallibly, to explain the world and thereby to improve it.
Canto: Interesting that Deutsch is careful not to say anything negative about democracy here, but he’s actually underplaying the role of democracy in decision-making, because we all know, I think, that new and important and worthwhile ideas aren’t created by democratic process, but by intellectual elites of one kind or another. These ideas are often carried forward by elected officials who have either helped to create them or have been persuaded by them. It may be that they don’t work or ‘their time hasn’t come’, but if there is a kernel of truth or real benefit to them, as for example with renewable energy and electric vehicles, they will, with modifications and adaptations, succeed in the end.
Jacinta: Yes, and what this sort of progress has to do with democracy is that there really is no political system that nurtures innovation and improvement in the way that democracy does, even if it does so with what sometimes seems frustrating slowness, and with the blockages by vested interests that so often infect politics, democratic or otherwise. Patience, I suppose, is a virtue.
Canto: Yes, democracy is in some ways a politics of persuasion, an invitation to try and discuss and dispute over new ideas, with accepted rules of engagement, trial and error, modification, exchange and respect, grudging or otherwise. And of course, with ongoing elections, it’s also a politics of renewal and revision, and that’s the fairest way of going about things as far as I can see it.
References
David Deutsch, The beginning of infinity, 2011
there’s no such thing as a fair election 1: the apportionment issue
Canto: So we’ve been talking about how politics have been interacting with the Covid-19 pandemic, and came to the tentative conclusion that strong centralised governments, collaborationist and respected by their citizens, were faring better at managing the situation than right-wing quasi-dictatorial anti-government governments like Trump’s USA, Putin’s Russia and Bolsonaro’s Brazil…
Jacinta: And those three countries just happen to fill the top three places in Covid-19 cases, though to be fair, they have very large populations. Anyway, the Scandinavian countries we looked at all seemed to have coalition governments of some kind, and from our great distance we preferred to assume that they operated through some kind of more or less happy consensus – but maybe not.
Canto: So we’ve been reading David Deutsch’s book The beginning of infinity, and there’s an interesting chapter, ‘Choices’, which looks at voting systems and what we want from government…
Jacinta: Or perhaps what we need, or should expect. What is objectively best, something which Deutsch, being a progressivist optimist, believes we’re converging upon – what he calls, in the political sphere, ‘advancing from misconception to even better [i.e. less damaging] misconception’. Deutsch considers first the ‘apportionment problem’ in the USA, a problem that many electoral polities have, as they attempt to represent particular electoral regions, with their different populations, fairly within a federal electoral system. The USA, like Australia and many other countries, has a House of Representatives, to indicate the aim of representative government. There are 435 US House seats, and the Constitution requires that these seats be apportioned to the states according to their populations. For example if state x has 5% of the nation’s population, it should get 21.75 House members. This is of course impossible, so the obvious thing to do is round up to 22, right?
Canto: Obvious, maybe, but brimming with controversy, because this rounding up, or down, will affect states’ representation, often rather more than was ever suspected. Deutsch imagines a more simplified House with 10 seats, and 4 states. One state holds a little under 85% of the population, the other three have just over 5% each. Rounding will mean that the large state gets rounded down to 8 seats, the three smaller states get rounded up to 1. This means that you have to add an extra seat, but it also means that the smaller states are over-represented, population-wise, and the large state is under-represented. And if you don’t add an extra seat, and the rule is that all states must be represented, then the larger state is reduced to a grossly unrepresentative 7 seats. You could of course add two seats and allocate them to the large state, giving it 9 out of 12 seats, but that still under-represents that state’s population, while enlarging the House to a questionable degree.
Jacinta: In fact a quick calculation shows that, to provide that large state with 85% representation, while giving the other three states a seat, you’d have to add 10 more seats, but then you’d have to add more seats to make the other states more representative – unless I’m missing something, which I probably am. And so on, the point being that even with a simple model you can’t, just from a mathematical perspective, attain very precise representation.
Canto: You could, on that simple model, take a seat way from the least populated state, and give it to the most populated one, thereby keeping the state to ten seats, but having no representation at all seems grossly unfair, and in fact the US Constitution explicitly states that ‘Each State shall have at least one Representative’. The aim, of course is to have, as near as can be, the right measure of representativeness. Having no representation at all, even in one small region, contravenes the ‘no taxation without representation’ call-to-arms of the revolutionary American colonists and the founding fathers.
Jacinta: Yet all the argy-bargy that went on in the USA in the 19th century over apportionment rules and quotas – and it was often fierce – overlooked the fact that black peoples, native Americans, the poor, oh and of course women, were not entitled to be represented. As Deutsch points out, the founding fathers often bandied about the concept of the ‘will of the people’ in their work on the Constitution, but the only ‘people’ they were really talking about were the voters, a small fraction of the adult population in the early days of the nation.
Canto: Nevertheless the apportionment issue proved the bane of election after election, eminent mathematicians and the National Academy of Sciences were consulted, and various complicated solutions were mooted but none proved to everyone’s satisfaction as the system kept chopping and changing.
Jacinta: Of course this raises the question of whether majority rule is fair in any case, or whether fairness is the right criterion. We don’t decide our science or our judiciary by majority rule – and good science, at least, has nothing to do with fairness. Arguably the most significant weakness of democracy is the faith we place in it. In any case, as Deutsch reports:
… there is a mathematical discovery that has changed forever the nature of the apportionment debate: we now know that the quest for an apportionment rule that is both proportional and free from paradoxes can never succeed. Balinski and Young [presented a theorem which] proved this in 1975.
Deutsch calls this a ‘no-go theorem’, one of the first of which was proved by the Nobel Prize-winning economist Kenneth Arrow more than twenty years before. Arrow set out five basic axioms that a rule defining ‘the will of the people’ should satisfy:
Axiom 1: the rule should define a group’s preferences only in terms of the preferences of that group’s members.
Axiom 2: (the ‘no dictator’ axiom) the rule cannot designate the views of one particular person regardless of what the others want.
Axiom 3: if the members of the group are unanimous in their preference for something, then the rule must deem the group to have that preference.
These 3 axioms are expressions of the principle of representative government.
Axiom 4: If, under a given definition of ‘the preferences of the group’, the rule deems that the group has a particular preference, this remains the group’s preference if some members who previously disagreed with that preference now agree with it.
Axiom 5: If the group has some preference, and then some members change their minds about another matter, then the rule must continue to assign the original preference to the group.
These all seem like unproblematic axioms, but Arrow was able to prove that they were inconsistent, and this turns out to be problematic for social-choice theory in general, not just the apportionment issue. According to Deutsch at least, it reveals the mythical nature of ‘the will of the people’.
Canto: Did we really need to be told that? There is no ‘people’ in that sense. And I’m not talking about the Thatcherite claim that there’s no society, only individuals. I’m talking more literally, that there’s no such thing as an indivisible national entity, ‘the people’, which has made its preference known at an election.
Jacinta: Agreed, but that rhetoric is so ingrained it’s hard for people to let it go. I recall one of our prime ministerial aspirants, after losing the federal election, saying ‘graciously’ that he would bow to the ‘will of the people’ and, what’s more, ‘the people always get it right’. It was essentially meaningless, but no doubt it won him some plaudits.
Canto: In fact, voting doesn’t even reveal the will of a single person, let alone the ‘people’. A person might register a vote for person x mistakenly, or with indifference, or with great passion, or under duress etc. Multiply that by the number of voters, and you’ll learn nothing about the soi-disant will of the people.
Jacinta: Okay, we’ve talked about the problems of apportionment under the US multi-state system. Next time we’ll look at the different electoral systems, such as proportional-representation systems and plurality or ‘first past the post’ voting. Is any system more fair than another, and what exactly does ‘fair’ mean? Good government is what we want, but can this be described objectively, and can this be delivered by democracies?
Canto: Well, here’s a clue to that good government question, I think. I walk into my class and I’m faced with twenty students. If I’m asked ‘who’s the tallest person in the class?’ I can come up with an answer soon enough, even if I have to make a measurement. But if I’m asked ‘who’s the best person in the class (not the best student), I’m very likely to be lost for an answer, even if I’ve taught the class all year….
Jacinta: Interesting point, but we’re not talking about the best government. There might be a variety of good governments, and you might be able to point out a variety of students/persons in the class who’ve positively impressed you, for a variety of reasons. Good government is not one.
References
David Deutsch, The beginning of infinity, 2011
The Institutional Design of Congress
the battle for justice: an update – the problem with documents
A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.
from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014
So I fired off an email to DCSI a few days ago, probably unwisely. because I was irritated when I looked more closely at their apparent agreement to give me a face-to-face interview as part of my appeal. Here’s what it says:
We confirm that you can provide additional information in the form of a face to face meeting with a Senior Assessment Officer…. I have also noted on your file your request to provide this information by way of a face to face interview so that they are aware of your preference to have a face to face meeting.
The problem with this form letter is that I didn’t ask for an interview in order to provide more information. I didn’t have any more information to offer, and I’d kept no documents of the case. I’d already provided my 2,500 word account of the case, together with links to my blog pieces of the time – a further 3,000 words or so, though probably not all relevant to the case. My reason for requesting the interview was to provide a human presence to supplement their beloved documents, and to give them an opportunity to explain their decision to me. They had, of course, given no explanation of or justification for their decision whatsoever.
So my rather peeved email may have torpedoed my chances of an interview, which is unfortunate as I just may have some more information by the time they give me that interview. I’ve made an official request to the SA District Court for court documents relating to the case, and a freedom of information request to the SA Police for police documents relating to my arrest and the charge. So I should soon be swimming in documents. I’m just hoping they arrive in time for the interview, if I get one, and of course that they reveal something useful for me.
I’ve also been advised to stop trying to do everything myself and get some legal advice, gratis if possible. Possibly a lawyer might be able to advise me regarding the possibility of connecting my accuser and finding out if he’s changed his mind, or if it’s possible to sue him for defamation, or if he’ll change his mind on pain of being sued. That’s obviously a long shot, and again it would take time (and money), which I don’t have enough of. False accusation is actually a criminal offence according to this NSW site, and I presume it’s the same in SA, but in my case the accuser was a minor, and a child under the guardianship of the minister (GOM) when he made the claim. So he was well-protected from prosecution. It’s just another indication that foster-carers are in a particularly vulnerable situation. No protection for them.
I’ve always had this useful mantra or rule of thumb in negotiating the slings and arrows. That is: if something goes wrong in your life, first, blame yourself. So in what ways am I to blame for my predicament?
First, I was naive in thinking this would never happen to me. I imagined I’d be able to win the respect of every boy in my care. I’d give them space, and I’d always explain plainly any disciplinary action I had to take. I’d teach them if they wanted to be taught, I’d correct them good-humouredly if they had dangerously wrong-headed ideas. I could get them to trust me and not see me as any kind of enemy. And I think I succeeded in that, even with the boy who told the big lie. However, I underestimated the difficulties i might have with some of the kids, and I underestimated the degree to which their agendas differed from mine.
I also underestimated the danger I’d put myself in, and the lack of protection for people like me, in one-on-one situations with a fifteen-year-old whose aspirations had virtually nothing in common with mine.
But these aren’t serious faults. Above all, I underestimated the ineptitude of the police and justice processes that I’d given myself up to once the arrest had been made, and the lie revealed (to me).
So here’s a question. How is it that a 15-year-old boy, of below average intelligence, IMHO, who simply wanted to avoid being put into care again, could, with a single, fairly obvious and transparent lie, completely defeat and make a mockery of the professional processes of the SA Police, the DPP and the DCSI, and destroy an innocent person’s career and reputation? HOW COULD THIS HAPPEN?
It’s a rhetorical question, but an angry one. I know how it is. It’s due to inertia, complacency and ineptitude. And a lack of understanding, or even concern, as documents are shifted from office to office and desk to desk, that this is about people.
When I first started to create a folder called ‘the big lie’, to collect any of the documents that happened to come my way, I was pretty sure I knew how this lie could be exposed and the matter resolved, but I was also sure it would never happen. All it would take would be a conference – the boy, his mother, selected family friends, and myself and selected supporters, including the social worker monitoring the placement. I was confident that, faced with this boy, I would expose the lie with a minimum of pain and embarrassment on his part, so he would continue living with his mother (if she would have him), and everyone would be alerted to the potentially destructive nature of his behaviour.
So that’s another point on which I can blame myself. I should’ve pushed this idea, though I don’t think his mother would’ve agreed. I think she would’ve been vehemently against it, convinced her little darling was telling the truth.
Anglicare, though, would’ve been for it, methinks. They knew the boy, and above all they knew me, which is why they didn’t take long to clear me once the criminal case was dismissed, and put more foster kids successfully under my care. That’s the point. Why would Anglicare, the welfare arm of the Anglican church, be the only institution to clear my name and allow me to keep working, when everyone knows that there’s an understandable moral panic about religious institutions and child sexual abuse? Why would they, under such pressure, keep on an ‘alleged rapist’?
I know the answer to that one too. Because they were the only organisation in this case that scrutinised people rather than documents. They knew my character, having worked with me for some time, and they knew the problems I’d been facing with the boy in my care. None of the others had the slightest idea, and showed no interest whatever in finding out.
the battle for justice part 3 – is there any way to clear your name?
A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.
from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014
shit, please don’t tell me the other 24
I’ve argued that it’s pretty well impossible to clear your name, once you’re arrested and charged with a serious crime, due to the nolle prosequi conundrum. And if the charge has to do with a child, you’re unlikely to get work which may involve children, even if no evidence whatsoever has been presented against you, as in my case. But surely there must be some way to clear your name. It can’t be all doom and gloom. Can it?
- Approach the former plaintiff
A number of people who know about the case have asked me – what about the boy who accused you? He’s a young man now, maybe he regrets it all and has changed his tune. If he could be prevailed upon to admit it was all a lie..?
To be honest, I have no inclination whatsoever to go looking for him, and it would probably look bad if I did. And if he changed his story after encountering me, or someone acting in my name, how reliable would his new story be? So I’m very reluctant to go down that path, though it might be a last resort.
2. Approach the DPP
More promising, perhaps, would be to go to the DPP. Why did they abandon the case? My guess has always been that the boy’s story was full of contradictions and kept changing, but it’s also possible that, under pressure, he admitted it was all made up. Way back then. As one of my quotes on nolle prosequi, from my previous post, states: Normally the DPP doesn’t give a reason for such a decision. I’m in the process of requesting all the court documents from the case, and maybe a reason for the decision will appear there, but again I’m very doubtful. And approaching the DPP for a reason now would surely be like trying to get blood out of a stone. Still, such a request might be worth a try.
3. Take it up with the ombudsman/human rights commission
Assuming my appeal fails – and it probably will – the DCSI website kindly suggests that I could take the matter up with these other organisations. The obvious problem with this is that it would be a long-term process, and I’m 61 years old, poor, and desperate to be reinstated in the job I love now. So, yes, I do feel it’s a human rights issue, and I would like to take it up, regardless, with the HRC, though I can hardly imagine it being a priority for them. It’s not a serious option for my immediate situation.
4. Appeal to consistency of character
This is the one that screams at me (and at others) as my best defence. We’ve all heard of criminal profiling, where the police or criminologists seek to predict future offending and victims based on past behaviour, but I have no criminal profile. When I was accused by this boy I was forty-nine years old, with no history, and never any accusations, of violence or sexual abuse of any kind. I’d fostered two young boys before this lad, and I fostered another three after him, with no complaints. I’m proud of what I did as a foster carer, and I’m particularly proud of my work as a teacher in recent years, with mostly young adults but a sprinkling of under eighteens in each class – scores of them overall. And never a hint of a complaint. On the contrary…
And this is what really hurts. When the police arrested me for rape, they had never so much as seen me before. They knew nothing about me, they wouldn’t know me from a bar of soap. They arrested me purely due to the seriousness of the allegation. When the DPP took up the case, passing it from lawyer to lawyer for about a year, none of them knew me from a bar of soap. I was no more than a name. Similarly, when the DCSI began screening me 11 years later, they didn’t know me from a bar of soap. I was just one of the presumably thousands of individuals they had to screen. And they didn’t investigate me, in the way the Dunedin Study studied particular individuals longitudinally – profiling them, essentially. They investigated documents. The documents of the police and the DPP. The documents relating to that one, isolated allegation. Nothing else mattered. Nothing.
So an appeal to consistency of character won’t work when character isn’t being looked at at any point down the line. The DCSI appears to look at documents, not at character. The DPP also looks at documents, police documents, and the police don’t seem to look at anything much. The DCSI has stated that an adverse finding isn’t binding. Employers can make up their own minds. But it’s no surprise that employers, especially large-scale impersonal employers, given the current state of moral concern or panic over sexual abuse, will have a policy of accepting the DCSI finding. Thus in this case, they’ll rely on DCSI documents, which rely on court documents, which rely on police documents, which rely on, in this case, nothing much. I think they call this ‘procedural fairness’. Let’s not let our human, personal biases get in the way of effective decision-making.
The Dunedin longitudinal study, and every other study of its kind, give strong scientific credibility to the insight that the best guide to future behaviour is past behaviour. My life-time record of civilised, tolerant, non-violent and caring behaviour, however, was never taken into account by the police when they asked me to sit down at the Port Adelaide police station, not knowing me from a bar of soap, and promptly charged me with rape. And everything that I suffered over the next year, and everything that the DCSI is putting me through now, results from that event.
I had a chat with my semi-former boss today (I’ve been sort of suspended from work pending the outcome of my appeal). I told her I held little hope of my appeal being successful, because ‘I had nothing more to declare but my innocence’. I didn’t actually say that, just thought of it now, but that was the gist of it. But interestingly I feel more confident now as I go through the processes. That’s the usual way when you’re under this kind of cloud, your thoughts oscillate, often extremely, from pessimism to optimism and back again.
My hope, ridiculous as it is, is that when organisations like DCSI have their noses rubbed into the basic injustice of taking the most extreme, conservative view of nolle prosequi, thus destroying the careers of good people, they will see reason. And they might also be persuaded of the obvious truth that everyone else is taking the most extreme, conservative view of their findings.
I’ll no doubt survive, deprived of my vocation. I’ll go into retirement earlier, I’ll be more pressed for funds. I’ll most certainly miss my students, more than anything. But I won’t give up the fight. I don’t want any of these people to feel complacently that they’re making this world safer for children and young people. In this case, they’re most definitely not. And it’s not good enough to shrug and think that some collateral damage is necessary when you’re doing the ‘right thing’. It isn’t.
The battle for justice part 2: the problem with nolle prosequi
A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.
from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014
Continuing from last post, the case against me was dropped a short while after the arraignment, but not before the police made a visit to my home, the soi-disant scene of the crime. They’d never visited my home or made any contact with me since the arrest, many months before, but it seems the arraignment had spurred them, or forced them, into action.
This was something I’ve never really got. Like many of us I’ve watched my share of crime shows and whodunits. Typically, the arrest comes as the final scene, after weeks and months of painstaking sleuthing. Yet my arrest seemed to have come at the start (though I did have to wait for a while), before any questioning. And then, after the arraignment, the police suddenly showed up at the putative crime-scene to do their sleuthing at last.
I knew what they’d come for, too. Long before, my lawyer had told me some of the details of the boy’s claim. I had apparently raped him in the toilet, after which he’d gotten away and locked himself in the bedroom. I was able to tell the lawyer that none of the bedrooms in my house were lockable, so that part of his story was demonstrably false, so at long last they’d come to check. And then, almost the next day, I was told the case was over.
I don’t remember being sent any paperwork to that effect but I suppose I must have. I was just relieved it was all over, that sanity had prevailed, etc. But this year, more than 11 years on, I came to realise, thanks to a screening process by the DCSI (the South Australian government’s Department of Communities and Social Inclusion), that it wasn’t over, and that it would never be over. This was because of the little matter of ‘Nolle Prosequi’:
The entering of a nolle prosequi by the Director of Public Prosecutions means that he is not pursuing the prosecution at this stage. Theoretically he may pursue the prosecution at a later stage, but this rarely, if ever, happens. Normally the DPP does not give a reason for such a decision, but it is usually based on a problem with the evidence he has assembled. In the course of assembling it, or after it has been assembled in a book of evidence, a problem may arise with a witness or a crucial part of it, that would make it difficult to proceed. Difficulties of this nature usually undermine the whole basis for the trial. Even if new evidence is discovered, the problems with the old evidence remain. If a nolle prosequi is entered, and then registered by the court, the accused is discharged and free to go. He or she enjoys the presumption of innocence that all accused people enjoy until they are convicted of a crime beyond all reasonable doubt. (Carole Coulter, Irish Times, April 2006)
Nolle prosequi... is a legal term of art and a Latin legal phrase meaning “be unwilling to pursue”, a phrase amounting to “do not prosecute”. It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor’s decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered. It contrasts with an involuntary dismissal. Legal effect [in the USA]: The entry of a nolle prosequi is not an acquittal, and the principle of double jeopardy therefore does not apply. The defendant may later be re-indicted on the same charge. Effect on future employment [in the USA] Federal agencies, especially the military, view nolle prosequi as an unfavorable judgement. This has the effect of requiring a waiver submission for service, or the outright denial of employment (WIKIPEDIA).
Nolle prosequi was the ‘finding’ in my case.
As indicated in the quotes above, nolle prosequi can be interpreted as anything from ‘presumed innocent’ to ‘still pretty suss’, and it seems any department, any arm of government, is at liberty to interpret it as they wish (and given the current environment, they’re more than likely to err on the side of the child/accuser). But here’s the kicker, as the yanks say. And it’s an extremely important and fundamental kicker for my argument. Once arrested (for sexual abuse or rape, say) nolle prosequi is essentially the best any accused can hope for!! This is the dirty little secret your lawyer is most unlikely to tell you about.
Let me explain. When you go and seek legal aid to defend yourself against a false charge [please, if only for hypothetical reasons, assume the accusation is false], it means you’ve already been arrested, and the DPP has already instituted proceedings against you. And once a prosecution is instituted, your lawyer will try to get it thrown out, i.e nolle prosequi. The other alternative is acquittal – but acquittal can only come after a full criminal trial. I quoted in my last post that an arraignment is the first stage of an 11-stage criminal trial in Australia. That should give an indication of just how humungous a criminal trial actually is – involving lawyers, witnesses and experts for both sides, the presentation of different types of evidence, examinations and cross-examinations, a jury presumably, and all in all a process that will tie up a courtroom for some time, with much expenditure of money and energy. So your lawyer is actually trying her best to make sure you don’t have your day in court. So nolle prosequi is the lawyer’s victory, but if organisations like DCSI interpret nolle prosequi as ‘still pretty suss’, that means you’re stuffed – for the rest of your life! If not longer.
Now, notice the statement from the DPP at the top of this post. It sounds impressive – they won’t go ahead with a case unless they have a reasonable prospect of succeeding (and this would surely mean having sufficient, or at least some, evidence). Now, let me tell you that during the whole 13 or 14 months that my case was ongoing, I was in a state of sleepless agony, and occasional rage, with the mantra ‘no evidence, no evidence’ echoing in my head, and on the day after I heard that my case was dismissed, I took to my computer and typed a terse paragraph to the DPP (yes I’m sometimes capable of terseness), accusing them of incompetence in my case, not only for seeming to pass the buck from lawyer to lawyer, but for going against their prosecution policy as stated on their website, which I quoted back to them (the policy was, I believe, worded a little differently in 2006 from the 2014 version quoted above, and I think then it actually mentioned evidence). Not surprisingly they didn’t respond, but I met my lawyer, purely by accident, a few months later and he told me my letter had caused quite a stir – which thrilled me as throughout the case I always felt like Mr Nobody or The Invisible Man. I asked him why, with no evidence at all, the case had lasted as long as it did. His response was that I was one of the lucky ones. Many people in his experience had gone through this process and been destroyed, based on no more evidence than they had against me. No more than someone’s story.
But I’ve had another insight since taking aim at the DPP all those years ago. Yes, I still think the DPP contravened their own policy by taking on my case, but I was forgetting, in my utmost naivety, the role of the police. Yes, the DPP say they won’t prosecute a case unless they have a reasonable chance of success, but when the police arrest a person and charge him with rape, the DPP obviously don’t know a thing about it. They only find out later, from the police. In other words, the DPP has cases ‘dumped’ on it by the police, and has to make the best of them. Their ‘reasonable prospect of conviction’ is based entirely on the word of the police that they have sufficient evidence. You can see here how a world of tension and acrimony might open up between the police and the DPP.
So it looks as if my anger against the DPP might’ve been misplaced. My anger should have been directed at the police. But of course if I’d written to the police about their lack of evidence, where would it have got me?