Punish the innocent, lest the guilty go free.

Over at Smoking Out The Truth an interesting question has been asked.

If I smoke in a pub, the landlord runs the risk of prosecution. Is this fair? Is it right that a completely “innocent” person should suffer for the actions of another?

I have been trying to come up with another law that follows this same pattern. The nearest I can come up with is the seatbelt law, where a driver is responsible for his passengers. However, in that case a car is an extremely small space and the driver is well aware as to who has a belt on, and who hasn’t. A publican can be working in the bar, while I am smoking in the lounge and the only way he becomes aware of my protest is by entering the room.

Is the smoking ban unique in this respect? Is it the only law where a person can be convicted without even being aware that a “crime” has been committed?

It didn’t occur to me at the time but I know of one very similar law, and have even blogged on it a couple of times (see here and here). The first of those relates to the story of a doctor in Perth whose Lamborghini was confiscated for 28 days after his mechanic was accused – not convicted, notice, just accused – of reckless driving by doing 160 km/h in a 90 zone. Last November I saw something that made me intend to revisit this but unfortunately I forgot. The interesting news then was that the driver, Leone Magistro, was found not guilty. So to recap, the owner, Dr Nugawela, lost his car to a police impound yard for four weeks not just for something he wasn’t aware of, present for or able to control, but in fact for something which could not be proven to have happened at all. How did they get it so wrong?

Dr Nugawela told The Sunday Times the officers who stopped the car had told him they had estimated the speed and did not have a printout from a radar device.

An estimate? They took someone’s car over an estimate of its speed? Boggle.

The second time I blogged this subject goes back to last year’s Melbourne Grand Prix and will probably be familiar to both my readers in Britain (hi Mum) since it concerned Lewis Hamilton acting like a bit of a cock by burning some rubber on a public road. In that case they just confiscated ‘his’ car for a couple of days but as I said at the time,

… of course it’s really not his car at all. What would a Briton living in Switzerland being doing owning and running a car in Melbourne? The car was of course a loaner, apparently courtesy of a local dealership. So what these tough ‘anti-hoon- laws have achieved here is fuck all apart from confiscating the private property of a wholly innocent third party. Lewis Hamilton is a very wealthy man and will not suffer from even the most OTT fine any court here will be able to impose, and since he won’t have a Victorian licence points are a non-issue as well. It will be an embarrassing incident for him but that’s at least as much thanks to the media as the police, the courts or these ridiculous laws. The only person who’s really being punished is the owner of the car, which being a company is probably not suffering too much but nonetheless has had it’s property confiscated despite having done absolutely nothing wrong with it.

Somewhat prophetically I also asked:*

What if it’s not a rich man’s toy like a Lamborghini but a tradesman’s work vehicle, and he can’t work until he gets it back? What if it’s not a dealership loaner but ‘Mum’s taxi’ needed for all sorts of errands that would then have to wait for at least two days?

Prophetic because I’ve just come across yet another instance of this happening, and this time it was indeed someone in his mum’s car getting it confiscated for 28 days.

Western Australians have a broader idea of ‘Mum’s Taxi’ than you find in Britain

Now there’s not much disputing that the driver is not a saint.

It is understood the driver, from Darling Downs in Perth’s south-east, was behind the wheel and was carrying a friend as a passenger, despite his licence being suspended two days earlier.

But we can see that’s a two seat ute. If his friend was the passenger then clearly his mother couldn’t have been in the car, had no way to see that he was driving so fast, and had no way of telling him to slow down. Unless she had actually given him permission to use the car in the knowledge that he’d been suspended, which is possible but seems out of the range of normal behaviour when you live in a state that takes your car away at the drop of a hat, what possible justification is there for punishing the mother? Especially as the WA government said they’d change that law after the Dr Nugawela / Leone Magistro case so that they no longer punished innocent owners.

Er, so what the fuck happened to the amendment then? And yet again, even if it’s admitted that someone guilty of no crime has been punished through this stupid and iniquitous law it’s all too late. The guy was pinged by a camera on New Year’s Eve and according to this the car was seized on the 8th of Jan and he appeared in court on the 3rd of this month. The case was adjourned until March 4th since his lawyer was on holiday and he felt he needed the legal advice.** And how does this help his temporarily carless mum? Not a fucking bit – she’ll have been allowed to take it back again by now, but no matter what happens it can’t be un-confiscated. She was, just as the pub landlords being discussed over at Smoking Out The Truth are, being held responsible for the actions of another person. Both might be expected to wield some influence over the offending parties but they can’t be expected to maintain a presence at all times, or indeed to physically prevent the law being broken if they do happen to be present – normally considered to be the job of the police in any case. Yet the law makes no allowance for this and will punish them all the same, perhaps even to a larger degree than the person actually committing the offence. Ignorance of the law is no excuse, which is pretty unfair given how huge, complex and incomprehensible the law in most places is these days. And now ignorance of an offence even occurring  is held to be no excuse either.

That’s just something, alright. But it’s not justice.

* I was doubly prophetic that day since I also suggested that eventually someone would fight the driving offence and be found not guilty, but that it would be no benefit to the owner who would already have been deprived of his car for however long before going to pick it up. I had no idea at the time that in one of the two cases that prompted the blog this would indeed be what happened, even though Leone Magistro always denied speeding.
** Oh? Ya think?

Posted on February 10, 2011, in Uncategorized and tagged , , , , , . Bookmark the permalink. Comments Off on Punish the innocent, lest the guilty go free..

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