CONFERENCE EDINBURGH JUNE 2005
AT THE SCOTTISH PARLIAMENT BUILDING
SUNDAY, 26 JUNE 2005
MICHAEL HILL QC RECOGNITION LECTURE
Justice Michael Kirby AC CMG Australia
SHORTER VERSION FOR READING IF NECESSARY AT THE OPENING CEREMONY
MICHAEL HILL QC REMEMBERED
I apologise for being unable by reason of illness to participate in person in this Conference in Edinburgh. I have taped a presentation of this lecture and hope that it may be shown later in the Conference. I send greetings to Edinburgh and to the members of the International Society for the Reform of the Criminal Law who gather there.
At precisely the moment that Captain Arthur Phillip was establishing the convict settlement at Sydney Cove in 1788, the great Scottish poet, Robbie Burns, came to Edinburgh to celebrate the publication of a book of his poetry. It is fitting and relevant to begin my remarks with one of Robbie Burns's poems:
Yet I am here a chosen sample,
To show thy grace is great and ample;
I'm here a pillar o' Thy temple,
Strong as a rock,
A guide, a buckler, and example,
To a' Thy flock.
We remember Michael Hill, for whom this Lecture is established. When he died in August 2003, he was nearing the end of his presidency of the International Society for the Reform of the Criminal Law. He died in office, full of ideas, encircled with friendships, a wonderful example of the international movement that, in our generation, has rescued law from narrow provincialism so that it searches for the things that we share in common as human beings, and as members of human societies.
Michael Hill was a leading advocate at the Criminal Bar, not just in England but in many countries of the common law. He had friends throughout the world - especially in the Commonwealth of Nations. He practised in that most stressful and demanding branch of the law for 45 years, earning a formidable reputation for professional excellence and service to the wider cause of the Bar and the criminal law.
He was born in May 1935 and read law as Brasenose College, Oxford. In 1958 he was called to the English Bar by Gray's Inn, where he later became a Bencher. From great leaders of the Bar, he learned the highest standards of professional conduct and devotion to duty. He was brilliant alike as a prosecutor and as defence counsel. He quickly won a reputation for unrivalled mastery of the detail of his cases. This reputation was to condemn him to a series of very lengthy trials, culminating in the successful defence he mounted in the Cayman Islands in a contest of crushing complexity that was to be his last major enterprise as an advocate. He was "tireless and fearless". Robbie Burns described advocates like Michael Hill:
"O Lord my God! that glib-tongu'd Aitken,
My vera heart an' flesh are quakin,
To think how we stood sweatin, shakin,
An' pish'd wi' dread,
While he, wi' hingin lip an'snakin,
Held up his head."
That was Burns's description of the trial of Craig Hamilton, a lawyer friend, charged with the terrible offence of Sabbath-breaking (and other dire offences) by the elders of the Church. Eventually, Hamilton was cleared by the Presbytery of Ayr, with the help of his counsel Robert Aitken. Like Aitken, Michael Hill was quick-tongued and "held up his head" as he put the case for his client with every skill that the client would muster had he the same training, temperament and knowledge.
I last saw Michael Hill at the conference of this Society in Canberra. He was everywhere - chairing sessions, giving papers, presiding with grace in the formal meetings, cementing friendships between lawyers from different traditions and all parts of the world. Little did I expect that so soon, this leader of the criminal law would be dead. We continue his work by remembering the causes for which he stood. They were an international dialogue amongst lawyers to bridge the continents; reform and not just unquestioning acceptance of the criminal law and its ways; training in legal advocacy so as to uphold the best of the law's traditions; and pride in the importance of the criminal law as the centrepiece of every civilised society's legal system.
On behalf of the Society I pay our respects to Michael Hill's widow Kathleen, his son and two daughters, and to his many friends whose journey through life has been enriched by knowing Michael Hill and by catching from him some of his enthusiasm for the great discipline of law and the joy of living life to the full.
FUTUROLOGY: A RASH AND HAZARDOUS SPECULATION
With the publication of the Criminal Law Review in 2004, a 50th anniversary article appeared, written by Professor A T H Smith, on "Criminal Law: The Future". In it, the author declared that seeking to predict the future of the criminal law struck him as being "a form of rash and hazardous speculation". The reason he gave for his disinclination to tackle the task was that "the whole process is too subject to the vagaries of events and the directive whim of politicians, to be a risk-free venture".
All futurology is dangerous because of the limited capacity of human beings to imagine the events and challenges that lie just around the corner. Sometimes the shape of the criminal law will be moulded, or at least influenced, by rational procedures. Thus, in the middle of the 19th century, the criminal law commissioners in England struggled with the reform of substantive criminal law, doing so partly in response to the changing economic and social climate of the time. In more recent decades, in many common law countries, law reform bodies, established after the model of Lord Scarman's Law Commissions, have endeavoured to stamp on developments of criminal law doctrine and principle the outcome of rational analysis and widespread debate.
In the British Isles, the 19th century attempts to codify the criminal law failed. However, the product of the labours of the codifiers of that time was not wholly wasted. The codes that lay unattended in Britain were taken up with enthusiasm by the imperial administrators in India and in other parts of the British Empire. Since the 1960s the basic idea has received a fillip from the work of the Law Commissions in the United Kingdom. In a federal state like Australia, where (as in the United States) responsibility for the content of criminal law, procedure and practice lies generally with the States rather than the federal polity, systematic reform is a messy business. Yet it goes on in the Executive Branch and also, from time to time, in the Judiciary.
Yet if it is difficult to predict rapid movement towards consistent laws and principles on criminal offences and procedures in a single country, the difficulties are multiplied enormously when dealing with the future of criminal law and practice in countries with ethnic, religious or other divisions or as between different countries manifesting such divisions.
Professor Samuel Huntington has famously expounded a theory of a cultural fault line dividing countries that share the values of Western democracies and those that do not, notably countries in the Islamic world. Other writers have suggested that the cultural fault line in question is not between the West and the Muslim world so much as between societies that coalesce in different ways on a "barometer of tolerance". Analysed in that way, societies quite often divide in their attitudes towards such issues as divorce, abortion, gender equality and treatment of homosexuals. Attitudes to such topics, sometimes grounded in understandings of religious texts written hundreds or even thousands of years earlier, present significant difficulties for those who seek modern international principles to guide humanity to common solutions to problems of the criminal law in the century ahead.
For those who believe that such issues can be discussed at meetings such as the present, and who hope to see the differences ironed out by rational debate, empirical observation and prudent give and take on all sides, the competing belief that the criminal law should be founded in holy texts, of whatever religion, presents something of an obstacle. In such matters, where the religious text is believed to be applicable, binding and clear, there may be no room for compromise or even rational debate.
Inevitable, this culture gap will affect the present and future content of the criminal law. No institution dedicated to issues of international reform of the criminal law can afford to be blind to these global phenomena. We see glimpses of them in manifestations of religious and cultural fundamentalism in Western countries. But they are writ large in other countries where religious fundamentalism is at an earlier stage of historical evolution.
In my written paper, I have considered a number of developments that require international attention to criminal law. These include the creation of international criminal tribunals and courts and the increase in anti-social conduct having transnational features. In these oral remarks I plan to deal with three particular topics that have lately been in the news in Australia. I refer to counter-terrorism offences; the suggested need to allow a little torture on occasion in aid of investigation and prosecution; and the rise in interest amongst transnational media in criminal law as it operates at home and abroad.
The dramatic events that occurred in the United States on 11 September 2001 have led to a raft of laws and governmental policies in many countries adopted to respond to the perceived dangers of global and local terrorism. Yet, in a number of quite different jurisdictions, final courts of appeal throughout the world have been fairly consistent in insisting that new criminal offences must conform to constitutional and human rights norms and must provide a measured response to the dangers of terrorism. Specifically, such offences must not endanger adherence to the rule of law itself.
For example, in Indonesia, in July 2004, the new Constitutional Court, by majority, struck down a conviction imposed on a person accused of involvement in the October 2002 bombings at Bali. The court did so on the basis that the accused had been prosecuted under a special terrorism law introduced as a regulation six days after the bombings whereas the new Constitution of Indonesia forbids retrospective criminal punishment. In Israel, no stranger to acts of terrorism, the High Court has recently upheld a challenge to the route of the national "security fence" as excessive to the postulated needs of national defence.
These and other cases, including some in the United Kingdom, constitute important evidence of a fairly consistent stance on the part of final courts, operating under different constitutional and legal regimes, insisting that counter-terrorism laws must remain just that. They must remain laws. They do not afford a carte blanche for unbridled power to executive governments or their agencies to pursue whatever they conceive to be in the national interest in responding to the perceived dangers of terrorism.
Every government and parliament that has sought to place restrictions on individual rights has claimed justification by reference to the rights of the mass of individuals in the community as a whole. Doing so involves nothing new, including in Australia. In 1950, the Australian Federal Parliament enacted the Communist Party Dissolution Act 1950 (Cth). That Act provided for the dissolution of the Australian Communist Party. It imposed criminal offences upon persons who continued to be members of such an unlawful organisation.
The Act was ultimately struck down by the High Court of Australia as constitutionally invalid. A referendum to amend the Australian Constitution to permit such a law was defeated in 1951. Yet, this happened at the same time as a similar law was enacted, and upheld, in the United States of America and as like laws were adopted in South Africa, Malaya and in several other nations, some of which have continued in operation in substance, to this very day.
In shaping the future of criminal law, in response to the threats of terrorism, it is essential to retain a sense of proportion. Every day more people die from AIDS than died in the attacks in the United States on 11 September 2001. Yet none of the same legal, economic, political and psychic energy has been mustered to confront that challenge to humanity, to the global economy and the toll of human suffering that was so quickly mobilised to respond to the perceived dangers of terrorism.
In shaping the future of criminal law, it is all too easy to respond uncritically and excitedly to popular political imperatives. We should be careful to keep our sense of proportion. A failure to do so may lead to serious excess.
CONDONING A LITTLE TORTURE?
As if to reinforce the foregoing point, it has recently been suggested by two Australian scholars of considerable repute that the "war on terrorism" may sometimes justify torture. According to reports, Professor Mirko Bagaric and Ms Julie Clarke of Deakin University advanced the proposition that torture should be permitted where the evidence suggests that it is the only means, because of the immediacy of the situation, to save the life of an innocent person. In such circumstances, torture (so it was said) is a kind of self-defence or necessity - permissible in legal and in moral terms.
The problem with this proposition is that it is usually impossible for interrogators to know with any certainty that a suspect has real information about a suggested threat. Permitting torture encourages its abuse. Even if in a very rare case it might save lives, in the majority of other cases where it might be used in practice it would cause far greater suffering than it prevents. Moreover, torture adds the cloak of apparent justification to oppressive conduct that is all too prevalent in today's world. The fact that Australians are now seriously talking about the justifications for torture shows the extent to which disproportion and abuse of rights have recently travelled in discourse about criminal law and procedure.
GLOBAL MEDIA & CRIMINAL LAW REFORM
The extent to which international attention to criminal law is part of contemporary society has also been illustrated recently in Australia in a highly publicised case.
The case concerned an alleged attempt of a young Australian tourist, Schapelle Corby, to import a quantity of marijuana into Bali in Indonesia. The accused, a beauty student whose plight was picked up by large sections of the Australian media, was found guilty and convicted by the Indonesian court. She was sentenced to 20 years' imprisonment. Appeals are pending both by the prisoner and by the prosecutor, who had asked for a penalty of life imprisonment. Encouraged by weeks of unrelenting front-page media attention, many Australians were convinced that Ms Corby was innocent and had been unfairly dealt with by the Indonesian criminal justice system.
Every day, as judges and practising lawyers know, cases similar to that of Ms Corby come before courts in Australia and throughout the world. Few, if any, of them enjoy the torrent of attention that this one secured. Most are ignored by media and the public - totally. So what was so special about the Corby case?
In the global market of media entertainment, serious debate about international issues of criminal law and punishment is usually furthest from the minds of the media industry. It remains for lawyers and other experts to attempt to clarify the real issues to be debated in such a case: Is the present international approach to drug use and drug addiction just, sensible and effective? Is there a more effective and just approach, at least for some such cases and some drugs? Is 20 years' imprisonment (still more, life imprisonment and death) for such an offence, wherever it takes place, self-evidently excessive? Can the disparity between punishments for such an offence, in Australia, Indonesia and elsewhere, be justified by peculiar local needs and the attitudes of the public in different countries? Do such punishments, in any case, deter those to whom they are targeted? Is there disharmony between the punishments inflicted for such offences and other punishments involving crimes of corruption, terrorism, violence and other anti-social conduct? Can there ever be a useful comparison between the criminal laws and legal punishments imposed in the judicial systems of countries so different as Australia and Indonesia? Is it futile, or useful, to compare such punishments? Whatever lawyers say, is it inevitable that such comparisons will take place today, given the character of global media and the application of modern satellites, cable television and universal communications? Is this just part of the world we live in?
In the coverage of the Corby case, some thoughtful analysis of the special features of the Indonesian criminal justice system has been published in the media referring to differences from the system operating in Australia. However, for the most part, community debates in this and like cases have been visceral, not informed. It seems likely that this will continue to be the case, given that xenophobia and jingoism are never far from the surface in contemporary popular media. A body such as the International Society for the Reform of Criminal Law aspires to more objective standards. Globalism is inevitable and desirable, including in discussion of criminal law and punishment. Yet for any real progress to be made in common understandings about such matters, it would be preferable for the discussion to be disentangled from media entertainment.
For all that, widespread public debate over criminal law and punishment is ultimately healthy and productive. Strong public controversies in other countries sometimes help to encourage reform of the criminal law and its procedures. The outcry at the Shar'ia Court sentence to stoning of a woman prisoner for adultery in northern Nigeria is a case in point. So, one day, may be the protests at the flogging and execution of homosexuals in Saudi Arabia. Unrest over the torture to extract confessions in Chechnya. The uproar over the United States treatment of untried persons accused of terrorist offences, held for nearly three years in Camp X-ray in Guantanamo Bay in Cuba. The widespread discomfort over the detention of children and others in migration facilities established in remote parts of Australia. And the disproportional numbers of Aboriginals in Australian prisons.
Perhaps this affords a lesson for the criminal law and like legal provisions in today's world. All of us are on trial. The laws of every nation are now under global scrutiny. The public is watching in every country and is ready to express its disagreement where criminal law and procedures appear unjust and excessive. Little by little, the voice of humanity, expressing human values may influence, for the good, the correction of wrongs and the excesses of criminal law and procedure everywhere. This will not happen overnight. But it does happen and sometimes in unexpected places and circumstances.
STRIKING THE RIGHT BALANCE
There are many other topics that a survey of the future of criminal law should cover. However, the few that I have mentioned will suffice to chart some of the issues for the years ahead.
If Michael Hill were with us in Edinburgh today, he would be full of ideas and thoughts, bright words and wise contributions. In the matter of criminal law and procedure, he was, in Robbie Burns's words, as we should be, "a pillar in [the] temple". He was, and we should be, "strong as a rock". He was for us, and we should be for those who follow, "a guide, a buckler and an example".
Criminal law is, and must forever be, the fulcrum and central element of the law of any civilised society. It must strike the right balance between the needs of the community, representing the mass of individuals, and the rights and privileges of an individual, accused of crime, facing all the power of the organised State. The interests of criminal law and its subject matter vary over time. There can never be a final word. There is no code that says it all for every age and for all countries and people.
To every generation is given the responsibility of striking the right balance between the State and the individual. We know from earlier times - times of torture and oppression even in our own legal tradition - that enormous wrongs can be done in the name of the State and by means of the criminal law and its procedures. As the world of growing integration and vulnerability faces new challenges and greater awareness, it is the obligation of today's practitioners of criminal law to adapt the substantive principles of the criminal law, to adjust its procedures, to add to its armoury where necessary and to respond to new challenges. But all this must be done within a framework of international law, fundamental human rights, growing enlightenment and knowledge of the world's best practice and the sharing of experience.
Passing fads, momentary hysteria and populist enthusiasm must all be kept firmly in check. In the matter of criminal law, the eyes must be fixed on a distant horizon because the values at stake, and the balances struck, define the very kind of society in which the law operates for all people. Those values are fundamental. That is why they are so important. It is why virtually everyone has a point of view about them.
Let Robbie Burns have the last word, in language apt for Michael Hill and applicable also to ourselves:
But, Lord, remember me an'mine
Wi' mercies temporal and divine,
That I for grace an' gear may shine,
Excelle'd by nane,
And a' the glory shall by Thine,