Paul Little: Errors deepen victims' pain

Christie Marceau's parents questioned the decision of a judge who freed on bail the man who then killed her. Photo / Sarah Ivey

The question of how bail laws are working - or failing - is focusing on the role of judges in recent cases where people who have been released on bail have gone on to commit murder, most notably and tragically in the cases of Christie Marceau and Inayat Kawthar.

Among the many crimes of which the judiciary stand accused is that they are an insular enclave, deciding to set criminals free while nursing a glass of port and a cigar in the comfort of their well-upholstered leather armchairs.

In fact, if there's one thing of which judges can't be accused, it's that they are cut off from the real world.

The nature of their job, as they go about the serious and solemn duty of depriving someone of their liberty, means they are daily exposed to a parade of the worst that life has to offer. (Not every day, obviously; their leave provisions are generous.)

Their understanding of the dark recesses of the human psyche and the aberrant paths down which human nature can be diverted is second to none.

And, like members of other professions, judges make mistakes. No occupation has a perfect record. People die because doctors fail to make a correct diagnosis of a life-threatening disease in time to do anything about it. Children perish at the hands of those who should be protecting them because someone at CYF has made a wrong call. A police officer decides to walk away from a domestic dispute which escalates to end in a fatality after his or her departure.

But when these mistakes happen, particularly in the case of doctors and police officers whose occupations are among our most trusted, we give a brave regretful smile and acknowledge these people are only human. The judiciary is not allowed the same leeway.

This is such a complex issue that, naturally, simplistic solutions are coming from all directions. Many people are calling for judges to be accountable, which sounds reasonable and just. On closer inspection, however, it's hard to know what exactly it would mean in practice.

Judges are already at the first level of accountability: if their decision results in a fatality, we know about it. We rarely, if ever, learn the identity of the doctor or CYF worker or police officer who has failed a victim.

Would accountability mean public shaming, sending judges to stand on a street corner with a sign reading "idiot" as one sentenced a woman in Cleveland to do for a driving offence this week? Would they miss out on a percentage of their Christmas bonus or have to work extra hours?

It's also been suggested that judges should provide a summary of the reasoning for their decisions - again, a superficially sensible but unworkable move. It would throw every verdict open to relitigation by a jury of nearly 4 million people who are not the judges' peers when it comes to the complex issues involved. I wouldn't want my fate decided by someone who might be worried about how the public would react to his or her decision.

You won't hear about any of this from the judges. They have always followed Australian billionaire Kerry Packer's motto: never complain; never explain. While it's a philosophy appealing for its staunchness, it's not working for them in practice, because their silence undermines confidence in their ability among the people whom, ultimately, they serve.

Some sort of acknowledgement of legitimate, deeply felt public concern is needed. What that should be is unclear but they should be able to come up with something. They're smart people.