Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
13 November 2009

If we start killing our own people we all lose

Politicians seldom admit to the existence of, or even embrace, complexity. Admitting that problems are complex (whether one is in government or sitting on the opposition benches) confuses people and can create a perception of indecision or even weakness (just ask Public Enterprises Minister, Barbara Hogan), so politicians often opt for easy sound bites (Julius, are you there?) and quick fix solutions.

They believe the public is stupid and will think the politicians are doing something about a problem when they announce a new initiative or an amendment to the law – even when the quick fix is going to change nothing or make things worse.

But surely voters are not stupid. (Well, some are suspiciously daft – More than one percent of voters did vote for the African Christian Democratic Party in April, but maybe they were so blinded by their hatred for homosexuals that they could not think straight.) That is why quick fix solutions will often backfire and at some point voters will turn against the politicians who have sold them a dud policy or programme or have promised them the world and delivered nothing.

Sadly, Fikile Mbalula, the Deputy Minister of Police, has not learnt this lesson. Yesterday he took time out from fighting with his Minister to tell us a lot of shocking nonsense, trying to convince us, as my grandmother would have said dat perdedrolle eintlik vye is (that horse turds are actually ripe figs).  

Firstly, defending plans to give officers greater licence to use lethal force, he said that it was unavoidable that innocent civilians will get shot in the crossfire between police and criminals. “In the course of any duty the innocent will be victimised,” Mbalula told reporters in Parliament. “In this particular situation where you are caught in combat with criminals, innocent people are going to die not deliberately but in the exchange of fire. They are going to be caught on the wrong side, not deliberately but unavoidably.”

Well, tough luck then. Those of us who are not important enough to be protected by VIP cops (at a staggering cost of R300 000 a month to us taxpayers), will just have to take our chances then. Instead of dodging criminals, we will now have to dodge both criminals and trigger happy police officers. We will also have to fork out millions to pay for all the civil claims from the family members of all the innocent civilians unlawfully executed by the police.

Second, Mbalula also said the promised amendments to section 49 of the Criminal Procedure Act would be tabled in Parliament next year, but would not amount to an overhaul of the act. In essence, lawmakers would change the act “in terms of emphasis on the word ‘necessary'” to remove ambiguity in the law, the deputy minister said. He gave no further details.

Section 49 states that if someone suspected to have committed a serious or violent crime resists arrest, the police may “use such force as may in the circumstances be reasonably necessary to overcome the resistance or prevent the person concerned from fleeing”. 

There does not seem to be any ambiguity there, but some have suggested that the Minister plans to change the law in such a way that individual police officers will not easily be held accountable when they shoot and kill civilians. Talk is that the amendment will aim to limit the necessity of individual police officers to use their discretion when they start shooting. There will be a rule that can be mechanically applied and as long as the police officer sticks to the rule everything will be fine – even if a few hundred civilians are murdered in the process.

The problem is that the Ministry cannot easily broaden the scope of section 49(2) in this manner as the exercise of a discretion is inherently required by our Constitution. In the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The problem for the police (and for the Minister) seems to be that this approach requires police officers to do that rather difficult think, namely to think and to use judgement in stressful situations where the wrong decision could have fatal consequences. The ethos of a human rights culture – as the Kriegler judgment makes clear – will always require police officers to exercise a discretion, as it requires them to weigh various factors and make  a decision (in a split second) about whether it is allowed to shoot and kill a person believed to be a suspect.

No matter how the Ministry tweaks the word “necessary”, it will not be able to remove this burden from police officers without changing the Constitution. The suggestions by the Ministry that it would be able to change the wording of section 49(2) to “clarify” section 49(2) and to provide clear rules not requiring the exercise of a discretion, is just plane daft.

The way to help the Police is NOT to change section 49(2) – which will give police officers a false sense of security and will lead to more Police Officers being charged with murder or culpable homicide – but rather to train police officers. A police captain was quoted in the paper this week as saying that you cannot teach police officers how to exercise this discretion and that it is all about having the right instincts. Bollocks.

In the same way that one can train a rugby team to improve its attacking and defensive abilities, one can train police officers to help them make better judgements in cases where they find themselves in stressful and potentially dangerous situations. This kind of training should include both a theoretical and a practical component. Police officers must actually be trained to understand what the law requires (not very difficult, but obviously something that bamboozle many in the police force as well as in the Ministry). Then they must be trained to sharpen their skills to apply the law in practical situations.

This kind of training, of course, requires, human and financial resources and may take time. It is a complex issue.  So, instead of doing something that will be difficult but will really make a difference, the Ministry wants to change the law. In the end this will not help us or the police. We will all become more frightened of the police while police officers themselves will wrongly think they can now act like cowboys – until they find themselves in the dock for murder.

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