The reason why legislation is intended to be simple, precise and unambiguous is down to comprehension. Or subject to shall we say, interpretation. Do the words have the same meaning that Legislators intended it to convey? Significantly, what mischief does it address and how or when is it to be applied? Answering these questions I believe is the reason why law making involves a significant degree of the consultation process. Not only because it is something intended for a layman to read and understand in the same way as the learned man or bureaucratic Legislator. But to ensure it is relevant, fair and effective for it to be both acceptable and applicable to the public at large.
Who needs laws
Laws are in place because they were agreed by civilised society to regulate behaviour. They are in place to ensure that there are equitable remedies or appropriate punishment, where necessary. Laws are also in place to protect both property and the innocent. They are also in place to compel good or humane behaviour or regulate relationships. In addition to ensuring that both perpetrator and victim receive closure. As well, as not only preventing vigilantes or anarchists, it is in the interest of justice that laws are enforced. Although I believe that the main purpose of law, is to deter crime. By reason of Divine laws, when God gave Moses the 10 commandments to keep His people from sin.
This is the reason why progress is made in societies where laws are taken seriously. As opposed to those where processes and institutions are corrupt. Reason why there are failed states where people could graduate from university and not even have a job as a road sweep. Or have all the qualifications for university and find themselves being denied entry. Disturbingly, where unbelievers or anarchists are concerned, injustice is remedied by taking the law into their own hands. This complicates matters and results in parties exacting vengeance instead of allowing, or subjecting themselves to, due process. Which the rule of law is. Otherwise, the end becomes a never ending feuds where none of the parties can be said to be in the right. These are, but a few of the dangers and deterioration in society, resulting from lawlessness.
Subject of Interpretation
In addressing this subject, we look at a recent incident which has been chosen both due to its simplicity and complexity, all at once! It concerns a Miss Aldrich, who was a 22 year young girl at the time of conviction, earlier this year. This young Lady was handed a 10 month custodial sentence for offences outlined below. Here’s someone immature and inexperienced, working as a Prison Officer soon after leaving School. Yet, a convicted sexual offender received a suspended custodial sentence. Meanwhile, Miss Aldrich was only 20 years old at the time of committing the offence of: -
Smuggling a mobile phone and sim for her love interest at a high security Prison
Breaching her professional code of conduct by getting involved with the inmate
Tattooing his cell number on her thigh
Admittedly, there is a clear case of misconduct and the offence of smuggling prohibited items.
It is the offender who prays the hardest when laws are to be enforced. One may pray for a liberal judge to hear the case. One would also pray for an independent and fearless Judge to determine the case. In extreme cases, another might pray for a corrupt Judge who can be bribed or corrupt officials who would drop the case or lose evidence or files etc etc.
However, reasons for the ban on use of mobile phones in a maximum security prison is not lost to anybody. Miss Aldrich also knew this. Having been through what I suspect would be rigorous training upon employment. Although I would advocate that these training programs have refreshers perhaps yearly or every 18 months but that is a different issue. The question is, was the importance of these measures lacking on her part, because of her immaturity and inexperience? Is it reasonable for the 22 year old female to be punished in the same manner as a 25 or 30 year old adult or male? Should she be punished as an experienced adult would have been punished, as prescribed by law? Bearing in mind that this was a first job for Miss Aldrich. Is the law being blind because the decision maker can only decide based on the facts presented before the court? This is where the issue does not only concern evidence but good or poor lawyering skills.
Aside from her age, poor judgment and inexperience, both her Mother and Stepfather, reportedly worked in law enforcement. In fact, one may argue that it is sufficient reason to assume that she should know better. Arguably, it is also a reason why a custodial sentence would be detrimental. Clearly, Miss Aldrich could be in danger of retaliation from fellow inmates. As well as the risk of coming out a seasoned criminal, due to her weak emotional or psychological state.
In the event, although it is not uncommon to find ‘corrupt’ officials, the laws are in place, to prevent criminals trafficking contraband for their friend. Therefore, it is not about the adequacy of the law governing this area but its application in the case concerned. Was the background to her state of mind considered?
Secondly, Miss Aldrich breached the code of conduct set by her Employer or profession. This was a direct result of getting emotionally entangled with an inmate, under her care. Although in considering her conduct, her immaturity and inexperience are crucial. So too was her state of mind as a vulnerable female of immature age in an abusive relationship. Apparently, Miss Aldrich was known to be experiencing issues with her then, external partner. Which in turn, led her to ‘confide in’ or get involved with her inmate love interest. It is due to this situation that it cannot be said that Miss Aldrich was in full control of her faculties at the time.
Evidence of this being the third incident of poor judgment on her part - tattooing the inmate’s cell number on her thigh. Who was abusing whom? Was the inmate exploiting her? Or was she deliberately indulging him or obsessed with him? In the event, her actions cannot be said to be reasonable behaviour from someone of sound mind, given her background and training.
Finally, it is argued that her trial and sentencing should be limited to simply smuggling contraband as opposed to the less serious offence of getting involved with an inmate. She has a right to her private love life. Although she must comply with the regulations of the profession she has chosen to pursue, that is a serious failing on her part. But not an issue to be criminalised. Considering that this would appear on her criminal record.
It is also argued that given her age and the aforementioned compelling reasons, her custodial sentence is excessive punishment. Due to reports that at the time, she had already been disciplined by her Employer. The principle of double jeopardy should apply. It should be recognised that a young girl of sound mind, would not risk everything, just to exercise her right to choose whom to love. In particular, we see the trouble with blanket rules because aseing female, her conduct should not have been adjudged in the same way as an adult male.
Regardless of clarity or language, these are only interpretations that observers can allude to. The fact remains that the law is the law but for the matter that is subject to interpretation. Hence the importance of clarity, without a protracted view of the law and its application. In framing decisions however, it is a matter for Judges to choose the best approach. This could be based on their style, background, interpretation of the law, evidence before them and circumstances surrounding the case. Would good or poor lawyering impact the outcome? Now that her love life has been criminalised, would the knowledge of good and evil have prevented this situation in the first place? But what would happen to the love interest who encouraged her flirting or advances? Is he already a criminal with no credibility, that negates whatever might affect evidence? It would help if the application of exceptions to the rule take place upon valid consideration of all circumstances surrounding the case. Which if missed, is the opportunity provided via the appeal process. Afterall, the law is supposed to be sufficient for the purposes of achieving justice. But what is justice if the rest of the world has already moved on to distinguish that separating male toilets from female toilets is a good idea. Yet we have not created systems to distinguish or apply these differences in day to day activities. Therefore, one concludes that it might be the same law that is applicable to everybody but its application to everybody cannot often be the same.