Why They Should Not Be Arrested - Pt.4

"We all know who are responsible for the ruination of our country. If I was compiling the report I would name the bankers, the regulators, and the government ministers responsible. I would then recommend that their pensions and lump sums be withdrawn, have them arrested and have them tried for treason."

This tirade, from a letter in The Irish Times last year, echoing many before, and re-echoed often since, fairly well encapsulates the themes which this series of posts seeks to address.

I list my problems with it a little further down, but I should digress first to stress that I too am an outraged citizen of Ireland, that is to say, a victim of The Madness that gripped this country (and others) until the blow-out of 2008. I do resist resort to the "lynch-mob"; that does not mean that I want no assignment of blame at all. Regrettably, many seem to think that "real justice" went out with the Star Chamber, and the lynch-mob, and that there has been no replacement.

The problems with the tirade are :

1. "We all know who" - Actually I am not at all sure that we do. The names usually "trotted-out" are essentially scapegoats rather than evil miscreants
2. "responsible" - this is a key word, to be discussed in detail as we proceed
3. "withdraw pensions" - in other words, punish by confiscation and probable impoverishment. Without trial or other due process ?
4. "have them arrested" - code for John Gormley's beloved but disgraceful "perp-walk", or as we lawyers call it, "public humiliation, usually at the suspect's workplace, followed by detention without trial, all in the hope of intimidating a suspect into confession, false or otherwise"
5. "tried for treason" - what ? Nothing else ? What's "treason" anyway ? (Note also that "charge" carries with it a necessary implication of possible acquittal)

Like everyone else I know, when a major calamity hits, I look for a culprit behind it. There isn't always one (accidents happen;trust me), but it's natural to check.

When it is possible to identify someone whom we think that we can blame, nowadays we do not simply hang him immediately from the nearest tree. This, I suggest, is not merely because we have now forsaken capital punishment, nor that too many innocent people were victims of that in the past.

Among the real reasons, in my opinion, are:

• our innate fairness
• the need of everyone to feel that guilty verdicts are the end of a rational process of achieving some understanding what really happened
• our appreciation of the fact that "guilt" is not a straightforward matter

The last point is what I had planned to address in this post, but considerations of space require me to defer it to the next, which will now follow more quickly than this one followed Part 3.