Making criminals because there is risk

Astrid Andersen had her life damaged by misguided police, a misguided judge and a misguided jury, all serving a misguided society.

The issue is risk. We are a society that wishes to abolish risk and attendant mishaps. When risk turns to mishap, we look for someone to blame.

In the United States that blame is applied through tort actions in civil courts. Here the ACC system all but closes that avenue for accidents. So there is a temptation to turn to the criminal courts.

In the civil system one might end up paying damages but with reputation otherwise intact. A loss in the criminal courts brands one a criminal.

So with Andersen. She told bike event competitors in writing to obey the road code at all times and not (in bold capitals) to cross the centre line. A competitor crossed the centre line, ran into an oncoming car and died.

Andersen’s troubles stemmed from the fact that her instruction sheet also said there was an “official road closure” at a checkpoint — a lapse of clarity which would in my eyes disqualify her from running a big event but was scarcely capable, on a commonsense reading, of overriding the blunt instruction not to cross the centre line.

Nevertheless, nearly a year later police charged her with “criminal nuisance”. A district court judge told the jury that to find Andersen guilty it had only to find her negligent (she would have known there was danger if she had turned her mind to it). He also inadequately answered questions by the jury.

The jury, thus misdirected and presumably composed of compassionate people upset by a needless death, convicted Andersen.

The Appeal Court has now fixed that. It has said that to become a criminal Andersen had to be reckless (actually know she was putting people in danger) and she was not reckless. The police were wrong, the judge was wrong and the jury was wrong.

There are four things to say about this.

First, while the Appeal Court does state that the criminal nuisance law can extend to events such Andersen’s, the Christchurch police had to strain their interpretation to encompass her episode. Moreover, the delay in charging her was unreasonable.

Second, the judge committed errors which contributed to the conviction. That is bad form. But judges do occasionally make mistakes, which is why we have an appeal system.

Third the case was heard by a jury.

The jury is a venerated vestige of a much simpler judicial and social system of centuries ago, suited to deciding simple facts in a rough sort of way but not to assessing subtleties of the law or complex cases — and susceptible to emotional blackmail by silver-tongued lawyers for whom there is no right and no wrong, only clients.

Jurors are press-ganged into the courtroom and paid a pittance. Thus, in effect, law-abiding people are fined because someone may have made mischief. There are horror stories of miscarriages of justice so jurors could get home for tea. Some years back a man accused of murder was subjected to a sort of judicial torture: three trials because the first two juries could not agree.

If judges need commonsense help from the broader society, they could rope in a justice of the peace or two.

The fourth point is that Andersen’s case and the police’s and judge’s parts in it reflect our society’s obsessive drive to eliminate risk or at least the consequences of risk — hence the demands for proof that genetic modification is safe (a scientific impossibility) and the “free” rescues of those who recklessly go up mountains and out in boats.

So, this mindset decrees, someone other than the cyclist herself must have been responsible for her death — and must pay for it.

There is a wider cost.

First, there will be fewer events such as Andersen’s. If criminal charges attend inadvertent mistakes, kids will miss out on school adventures and so on because sensible citizens will not risk prosecution by overzealous police.

Second, there is a money cost. Applying protective legal wrapping to event organisers costs money. We all lose from that, directly or indirectly.

And, third, there is an ethical cost. Instead of the cyclist being at least part-responsible for blatantly disregarding the centre line instruction, Andersen was branded a criminal. The police, a judge and a jury contributed to this ethical distortion.

There are risks. Risks have consequences. They cannot be abolished by law. The Appeal Court has put a small peg in the ground. But perhaps that was the sort of “creative” judgment political leaders abhor.