The return of the Law of Suspects

(This note follows one which looked at a call by some that Michael Vaughan be stood down.  That note began as follows.

The Age today has an article by Osman Faruqi, who it describes as ‘a Pakistani born Australian journalist.’  Mr Faruqi says there is ‘a cloud hanging over this series that few in Australian cricket seemingly wanted to acknowledge, let alone discuss.’ 

The cloud consists of allegations of ‘racism’ against Michael Vaughan, a former English captain, and current commentator.  The only allegation that Mr Faruqi mentions is that Mr Vaughan is alleged to have said to a group of Asian cricketers ‘Too many of you lot, we need to do something about it.’   Mr Vaughan denies making saying that.  (If it matters, I believe him.  I hold Mr Vaughan in high regard.) 

English media organisations have apparently dropped Mr Vaughan as a commentator.  Mr Faruqi says Fox Sports should do the same here.)

King Lear had foolishly divided his kingdom between two evil daughters, and one of them had caused one of his companions to be put in the stocks for insolence.  The stocks or pillories were wooden devices with holes for head and hands ‘in which offenders were formerly imprisoned and exposed to public abuse’ (Compact OED).  It was a brutal form of public degradation made for the taste of vindictive people in cruel times.  So, King Lear put the question stated at the head of this note.  He was suffering an affront to his prior majesty that one of his daughters could do this to a man under his protection.  He said that it was worse than murder to ‘do upon respect such violent outrage.’  And he immediately sensed for the first time the onset of his madness.

In the 1930’s, a Russian princess sued MGM for libel.  She alleged that a movie imputed that she had been raped by Rasputin.  A typical libel says that the plaintiff has done something wrong so that others should think less of the plaintiff.  But it might also come from an allegation that causes people to ‘shun and avoid’ the plaintiff.   A judge and jury found against the film producer on this basis.  Whether that would happen in Melbourne now is at best doubtful, but a suggestion in 2021 that a man had tested positive for Covid could be as dangerous as a suggestion in 1981 that he had tested positive for HIV. 

And we are reminded that under the old law, you could sue for a merely oral form of publication if it imputed toyou a disease which would ostracise you from society.  Indeed, you could be prosecuted for criminal libel if you attacked someone with enough acid to provoke a breach of the peace.  And truth then was no defence.  As the old text (Hudson on Star Chamber) remarked, ‘it is not the matter, but the manner, which is punishable: for libelling against a common strumpet is as great an offence as against an honest woman, and perhaps more dangerous to the breach of the peace: for as the woman said she would never grieve to have been told of her red nose if she had not one indeed, neither is it a ground to examine the truth or falsehood of the libel’.   (Protecting the peace from violence in response to abuse is now the task of police and summary offences legislation about offensive or insulting conduct.)

In the middle ages – say about 1215 – a criminal taken in the act was without more an outlaw – outside the protection of the law.  He was not entitled to any ‘law’.  What had to be proved was not that he had been guilty of murder, but that he was taken red-handed ‘by hue and cry’.  As F W Maitland mordantly remarked, ‘our records seem to show that the kind of justice which the criminal of old times had most to dread was the kind which we now associate with the name of Mr Lynch.’  And we need not here pause to inquire whether that old law survived in law the guarantee of due process in Magna Carta.  It’s pounds to peanuts that it did survive for some time as a matter of fact.

So, our primitive law allowed people to be punished by being forced into the stocks and subjected to public abuse – a kind of verbal stoning.  Since 1689, an attempt by any body except parliament to impose such a penalty would be declared unlawful as a ‘cruel and unusual punishment’ in contravention of our Bill of Rights.  And the law recognises that you can suffer hurt and damage to your reputation by a publication that does not say that you did anything wrong , but merely that there is something about you that people should steer clear of.  The law could therefore be invoked to guard against ostracism.  And centuries have gone by since a miscreant could be taken and dealt with, if necessary by execution, without trial or any process at all.

So, some ways of dealing with conduct against the community have been preserved.  Some have not.  A lynching involves killing the suspect.  That is one difference between a lynching and the dismissal from office that some seek for Michael Vaughan in response to an allegation, that he denies, of racism.  If you can think of any other difference, could you be so kind as to let me know?

It is fundamental to our constitution, and our way of life, and it has been since 1215, that no one should be punished except under the law and in accordance with process.  People who seek to avoid or diminish that fundamental right really attack us where we live.  And although some may not see it, there is a strong thread of humanity – or humaneness – in our common law. 

This is rarely articulated.  Perhaps it cannot be.  But it can I think go back to a sense of an inherent worth or dignity in each of us that derives from the mere fact that we are human.  And I think this is so for a body of people most of whom have never read a word of Kant.  This is because the common law eschews theory, much less philosophy.  It just asks if something works – and if it is fair.  And we have a reasoned suspicion of any form of power over people because we know that such power corrupts.

So, we get the notion that if there is doubt, the accused should get the benefit of it.  And we would prefer guilty people to go free rather than jail innocent people.  (And thank God we did not hang Lindy Chamberlin.) 

Even in civil cases, an unspoken leaning might surface at about two o’clock in the morning, as the judge wrestles with the law and her conscience or humanity – ‘Well, bugger it – if someone has to suffer, let it be the side who can best bear it.’  That premise is never articulated, but it is normally there – and those judges who stifle it become known.  (This was given eloquent expression to me many years ago by a decent war horse named Les Ross: ‘I have just been appearing before a snake on a rock.’  Who had ginger hair.)  

The case was stated with what I might call Dominican subtlety by Lord Devlin (whose star has now been so sadly burnished), when discussing that great triumph of our law, the jury:

Trial by jury is a unique institution, devised deliberately or accidentally – that is, its origin is accidental and its retention is deliberate – to enable justice to go beyond that point [the furthest point to which the law can be stretched ]…The fact that juries pay regard to considerations which the law requires them to ignore is generally accepted…It is, for example, generally accepted that a jury will tend to favour a poor man against a rich man: that must be because at the bottom of the communal sense of justice there is a feeling that rich man can afford to be less indifferent to the misfortunes of others than a poor man can be.

As it happens, these predilections of our law sit well with us here in Australia.  We distrust theory and we reject ideology outright.   No one I know takes seriously the wafty outbursts of people like the Institute of Public Affairs or those who chase the illusory Golden Fleece called ‘Western Civilisation’.  They are just little children who stoutly refuse to grow up, and who amuse themselves with wordy but quite useless board games.  They putter about like Eskimos in their sequestered igloos, while real life goes on in the Savannah, or what Churchill called the broad sunlit uplands.  They prattle on in their own special dialect – call it Poodle-Dum.  They are truly privileged.  And groomed and manicured to the hilt.  They do not have to do anything.  They merely comment on what others do.  Power without responsibility is what used to be called the privilege of the harlot through the ages.  These think tanks could have sent Plato clean out of his mind.

There is an engaging ongoing intercity derby – who can be the most banal – the Institute of Public Affairs or the Menzies Research outfit?  Each is fronted by a world-class champion bullshit-artist, the quintessence of banality.  There are moments of hilarity.  Their cadres bang on endlessly about elites – as if excellence were to be avoided.  But the IPA is fronted by the noblesse of the Melbourne club and one of the richest people in Australia.  In a way, they resemble the aristocrats who laughed so loudly at The Marriage of Figaro – and then saw themselves humourless at the base of the scaffold.  We just have to hope that our children and theirs see the joke on what Gina leaves to us on this blasted planet.

And when it comes to a dispute with management, the natural reaction of Australians is to line up against management.  Indeed, that inclination is nigh on mandatory if you are talking about sport or government.

All these traits of ours are I think well enough known.  What is sadly less well known is the danger inherent in those who would see a man deprived of rights merely because of suspicion – as happened in France with the Law of Suspects in 1793.  That period is known as the Terror.  If is from there that we date the use of the term ‘terrorist’.  Government by terror became the order of the day.  The rights of an innocent individual had to give way to the interests of the State.  That is precisely the modus operandi of those regimes that we least respect (to use a phrase of Sir Owen Dixon).  It is a point-blank denial of the rule of law that we have sat under since 1215.

But that looks to me to be just what people are seeking in the case of Michael Vaughan.  ‘Terribly sorry, old boy – but you will just have to take a hit for the team.’  Except that here the ‘team’ is that ghastly construct, the State. 

This does remind me of a story told by Luke Hodge, who had become one of the most highly respected captains in the Australian Football League.  Hodge had been frisky early in his career, and his coach, the rightly revered Alistair Clarkson, came down heavily on him. ‘You will think you have been dealt with unfairly – and you may well be right.  But there are other interests in play.’ 

That is fine – in a footy club.  Its reasoning there is impeccable; but in affairs of state, it is verboten.  The notion of conduct ‘prejudicial to the interests or reputation of’ a body is OK where people are free to contract in or out – and who get paid enough to warrant some check on their baser instincts – or in a uniformed service that has an interest in preserving a decent public image – but it does not hold for you and me and our government. 

This is serious.  We must not pussyfoot about it.  In Darkness at Noon, Arthur Koestler introduced us to ‘The Grammatical Fiction’.  There is no such thing as ‘I’.  One protagonist put this note in his diary:

We have thrown overboard all conventions; our sole guiding principle is that of consequent logica; we are sailing without ethical ballast.

It comes as a shock to recall that millions of people in both Russia and China look back on mass murders of many millions with mixed feelings.  We are now told that many Americans have mixed views on the insurrection at the Capitol of 6 January 2021.

The defiance of the rights of the individual was again evident in the way Cricket Australia threw Tim Paine straight overboard.  Leaving us to read press reports of concern for the mental health of both him and his wife.  And people call for footballers to be dropped if they face allegations of sexual offences.  Even though our bloated criminal justice system may take years – before finding that the case had failed. 

This is not just the loss of livelihood.  We are speaking of wrecking a life and a person’s standing among us.  And don’t speak to me of someone taking a hit for the team.  We are talking of voracious trading corporations – like Cricket Australia or the Australian Football League – whose care for the people they trade on resembles that given to Russian serfs by the boyars circa 1812.  They just look after themselves and their bottom line. 

In twenty years acting for Anglican priests pursued by their own superiors, I saw just this response from a neurotic and selfish hierarchy who threw their accused out of sight and out of mind in a fevered defence of their face and their brand. 

At least since 2016, and the advent of Trump, we have had to contend with people who choose their own reality over that lived in by the rest of us.  We see it just as frighteningly now with warped minds prattling about ‘freedom’ when matters of life and death are at hand. 

It is worth recalling some insights from the luminous mind of Hannah Arendt (in The Origins of Totalitarianism, 1975).

The attraction of evil and crime for the mob mentality is nothing new.  It has always been true that that the mob will greet ‘deeds of violence with admiring remark: it may be mean but it is very clever.’  The disturbing factor in the success of totalitarianism is rather the true selflessness of its adherents…The temporary alliance between the elite and the mob rested largely on this genuine delight with which the former watched the latter destroy respectability…The object of the most varied and variable constructions was always to reveal official history as a joke, to demonstrate a sphere of secret influences of which the visible, traceable and known historical reality was only the outward façade erected explicitly to fool people…the difference between truth and falsehood may cease to be objective and become a mere matter of power and cleverness, of pressure and infinite repetition.

Well, all that related to the evillest people in history – but it is shocking to see how well it describes the U S in 2022.

Yes, but what has it to do with the campaign to discredit and unseat Michael Vaughan?  Just this –the decline in the place of truth in our lives leaves us so much worse off.  As does the decline in common sense and common decency.

Let me take one example from The Weekend Australian of 1-2 January, 2022.  James Allan is apparently Garrick Professor of Law at the University of Queensland.  His piece is headed: The dangerous path towards segregation and despotism.  It is full of the tropes of bloated ideology that we get here on weekends.  Two extracts will be enough.

Yet Covid-19 comes nowhere near the level of lethality needed to justify what amounts to a huge inroad into the basic standards of a functioning liberal democracy…If you are over 80, or obese, or have a number of comorbities, then look out.

My own bias is that I am squarely within the high-risk area that the professor identifies.  The virus could have me for breakfast.  But I am apparently expendable – in the interests of ‘freedom’ for Jimmy, Clive, Craig, Pauline and their mates. 

And the professor does not stay to mention what he understands by the word ‘lethality’, the criteria for assessing it, or the capacity of a lawyer to identify and apply those criteria.  When the consequences may be fatal.  Such is life in the likes of Fox News in the U S, and the front office for those spent political parties that they seek to protect.  One for lucre; the other to hand it out to keep the better people and the evangelicals in power.

You might wonder how a professor of law might view a GP who challenged him on the juristic basis of his chosen area of specialisation in the law.  Or perhaps we might ask about the wisdom of a plumber electing to act for himself in a murder trial, based on what he had learned about advocacy from a DIY book on how to become a successful vacuum cleaner salesman.

You might also wonder about that part of our law that says that we should take care not to hurt our neighbour.  And I wonder why I should now be reluctant to go the pub or the movies in case I have the bad luck to get near and infected by some poor deluded soul who has been badly afflicted by the noxious tripe peddled by people with the mentality and morals of Clive Palmer or Craig Kelly – in the hilariously labelled United Australia Party.

We now have to live with two sorts of failure in the life of our community.  One lot among us think they know better than those who clearly do.  Another lot seek more power to live as they wish than others are prepared to allow them.  Both involve people putting themselves above the rest of us.  The first are arrogant.  The second are selfish.  They commonly go together.  We have not just the return but the triumph of ‘I’.

Which brings me back to the failure to articulate the premises of logic in Mr Faruqi’s campaign against Michael Vaughan.  What precisely is the kind of ‘racism’ alleged?  What is the evidence of what was said and to whom and in what context?   What meanings might the alleged words have conveyed, and on what ground is it alleged that that meaning comes within what form of proscribed ‘racism’? 

There is nothing subtle about this – whether you call it natural justice, due process, or procedural fairness.  Or common sense – or just manners.

I remarked in another context that if someone alleged that you were ‘corrupt’, and you sued for libel, the court may well order you to say what form of corruption that you say is being alleged against you.  What do you say was the ‘corrupt’ conduct imputed to you?  The court would do this as a matter of fairness.  Someone being sued has a right to be told of the case that they have to meet – if the publisher wants to allege truth as a defence, what evidence must the publisher adduce for that purpose? 

May I repeat – we are not here speaking just of logic, but also of fairness – or common decency.  There is too much in the smearing of Michael Vaughan that recalls the dark workings of Senator McCarthy.  Or the latterday machinations of parts of the press.

They are the main grounds on which I maintain that the attack on Michael Vaughan is misconceived and without merit.  But that attack does evidence a very worrying trend in the decline of logic, truth and courtesy in our public life.  

At the height of the Terror in France, the presumption of innocence was as good as reversed.  Robespierre said: ‘Whosoever trembles at this moment is also guilty.’  He also subscribed to ‘trial by conscience’ – an intuitive decision rather than a reasonable one; the accused could be convicted for attitude as well as actions.  In another speech, Robespierre gave us all the essence of paranoia – ‘Look about you.  Share my fear, and consider how all now wear the same mask of patriotism.’  The good looked just the same as the bad.  

Now, we are nowhere near that level of moral collapse, and it would be silly to say that we were.  But I agree with King Lear – and he was not mad when he said this.  Violent outrage is being done upon respect.  There is far too much of it going on, and at least some of those guilty of this form of outrage should know better.