Monday, April 24, 2006

Bagaric Follow Up

I wanted to make a quick elaboration on yesterday's post about speed cameras. My problem is with the standard arguments against cameras and fines at the levels they are at today. These are firstly that cameras are simply a revenue raising device and secondly, as Bagaric asserts, humans are not infallible and are therefore punished excessively when they accidentally break the law. The arguments are interrelated.

Bagaric does not address the revenue raising argument explicitly, but his discussion of fine levels implies the argument. I would argue that of course cameras are a revenue raising device. This is the point of fines for breaking the law. The law sets a speed limit and, at least for all you 'anti-revenue raisers', does not make jail an alternative unless in extreme circumstances. This is the point of the law - to revenue raise. The only way people change their behaviour is if it hurts them in some way, and usually the most hurtful way is either a death in the family or caused by the driver, or a big fine. I would not wish the experience of killing another person on anybody, so for me, fines are the way to go.

I also notice that if the government really wanted to revenue raise just for the sake of it, they could be a hell of a lot more devious in their use of speed cameras. I may be wrong, but last I heard, cameras are never hidden (in trees for example) and are never placed on the bottom of a hill. It is, therefore, usually in an open space where if you are speeding you deserve to get booked. Further, fixed cameras are fairly widely publicised. Hands up if you didn't know cameras are all over the Western Ring Road, in the Burnley Tunnel and outbound on Alexandra Parade. For people who get booked at these points, all I can say is, well, why on earth were you speeding there?

So, of course speed cameras are there to revenue raise. As I always say, don't speed and you will not get booked, especially if you know cameras are fixed. This runs into Bagaric's next argument, that human beings are fallible and make mistakes. Of course they do, I would not deny that. However, I'll let you in on a little secret that Bagaric never would, indeed never does. He is discussing fundamental principles of criminal law that he would never fiddle with because of the massive cost that would impose on the legal system.

For the uninitiated and in a broad sweep, criminal liability requires not only a criminal act, but a criminal intention to commit that act, or a recklessness as to the harm that might be caused by that act. Some crimes, called crimes of absolute liability, require no criminal intention and apportion liability simply for doing the act. There is an intermediate category of crimes called strict liability, which allow an offender a defence of honest and reasonable mistake of fact. Therefore, if an alleged offender can prove they were mistaken as to a fact, such as the speed they were going, rather than mistaken as to the law, such as the prevailing speed limit, they will not be criminally liable. Speeding offences impose strict liability.

When Bagaric argues that humans are fallible and should not be punished when they speed accidentally, he is actually saying that speeding offences should not be ones of strict liability. He is saying that an offender should be able to go before a Magistrate and say 'Your Worship, I didn't mean it.'

Can you imagine the chaos that would be caused if every time the police wrote a speeding ticket, they needed to go to court to prove the offender meant it? This is why speeding is a strict liability offence, the harm from imposing strict liability where sometimes people will speed accidentally is outweighed by the social cost of allowing many offenders to get off their fines because the police could not prove their criminal intention at the time they were speeding.

Have a think for a moment how difficult it is to prove somebody had the intention to do something. It is a near-impossibility, which is why the cost to the legal system and to society of proving such intention is done away with.

Bagaric would never tell you that, which is amazing for a criminal law academic. It is almost intellectually dishonest, but I wouldn't actually accuse him of that - he might get angry with me.

6 Comments:

Blogger Dash Brannigan said...

Good to see you've found someone else to have a spat with...

In any case, I have a question. Could you make it a strict liability crime on the sole proviso that it was your speedo that was in error and not your judgment?

Speedometers in Australian cars have like a 5% accuracy tolerance each way. Meaning you could be doing 63km/h but showing only 60km/h.

So the driver would be making an honest mistake of fact seeing as their speedo was misleading them.

Now, this would require independent tests of your vehicle. That’s an easy problem to solve. If you choose to dispute the ticket, and get the car tested, if you are proved wrong you will have to pay for the test and wasting the courts time.

And dissention is a perfectly cromulent word, and I’m emibiggend for knowing it. But it doesn’t red squiggle in word… odd.

5:42 pm  
Blogger Not my real name said...

No no not a spat! Mirko doesn't have spats, he has sermons.

In theory, yes, that scenario is a mistake of fact (in my opinion anyway).

The defence is that you didn't know you were going that fast. However, the mistake also has to be reasonable, so if you were going 90 in a 60 zone and said you didn't realise you were going over 60, they would probably knock you back.

However, that small discrepancy might very well be ok.

10:18 pm  
Blogger Not my real name said...

Oh, and the word is 'dissension', not 'dissention', by the way.

So says the Macquarie dictionary. Probably your word processor is on American, and we all know they can't spell.

10:19 pm  
Blogger Dash Brannigan said...

Ooops meant that one not tother way round. But still with the Aussie spelling it works for both...

It's kind of funny though. MS word is a surpisingly powerful influence on our wirtten language.

If you took the letter "c" out of Microsoft Word it would be quite funny.

But it then bekomes Mikrosoft word.

10:55 pm  
Blogger Dash Brannigan said...

Just reading through some of Bargic's stuff, regardless of what porfessional position he holds I don't think he's shooting for "academic". I have a feeling he's aiming for the title of "pundit".

11:24 pm  
Blogger Not my real name said...

I totally agree, and I think that is the problem. The guy is dean of a law school, he has an obligation to uphold the school's academic integrity, which he clearly doesn't do!

11:55 pm  

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