Talossan Criminal Code: an outline

[Miestră Schivă, UrN-GC]

As I see it, you're suggesting two things need to be resolved to meet this standard:

1. Was someone convicted of a crime that matches the definition of stuff we really don't like?
2. Was this conviction fair (ie, was it in a place like Auckland or a place more like Tehran)?

I think that in the vast majority of cases, the second question will be one of just checking the box.  It's not often going to be in dispute about whether or not a conviction was actually fair, especially if we are clear that the specifics of the trial really aren't the question.  We don't want people trying to argue that they had ineffective counsel, for example.  So we can probably handle these questions in that order, and the central part of the process will just be the very simple question of whether a conviction qualifies as "bribery" or whatnot.  I don't really worry about anyone getting persecuted or railroaded with such a process.

Before continuing, does all of that seem correct to you?

I believe that all this is correct, but I also like Ián T.'s approach. I think we have to keep in mind that we don't want a process which is so strict or so complicated that it just won't be used.

We should keep in mind the only precedent for this situation - the I. Canún situation - and whatever standard we raise, we should think: how would the I. Canún case have played out under this standard? I mean, I would like to believe that whether a foreign court ruling is credible would be a box-ticking exercise: but unless I'm very mistaken, at the time of the Canún case, certain prominent Talossans were saying that the US court ruling was not credible, based on their conservative political beliefs about how it's "too easy" to be convicted of  sexual violence these days.

I wouldn't be averse to excising 7.2.10 and debating it separately, if the rest of the bill is uncontroversial and won't attract a Royal veto.

[Baron Alexandreu Davinescu]

I believe that all this is correct, but I also like Ián T.'s approach. I think we have to keep in mind that we don't want a process which is so strict or so complicated that it just won't be used.

I have to admit that I don't really understand any differences with Ian's approach.  It seems like he's just agreeing with the current proposal in kind of an elliptical way.  Isn't the whole point of what we're doing that it's an effort to separate out credible convictions from the unjust garbage, rather than to accept them uncritically?

We should keep in mind the only precedent for this situation - the I. Canún situation - and whatever standard we raise, we should think: how would the I. Canún case have played out under this standard? I mean, I would like to believe that whether a foreign court ruling is credible would be a box-ticking exercise: but unless I'm very mistaken, at the time of the Canún case, certain prominent Talossans were saying that the US court ruling was not credible, based on their conservative political beliefs about how it's "too easy" to be convicted of  sexual violence these days.

I know that some people were initially hesitant to just assume that Iusti did something really wrong when they just first heard that he'd been convicted of something, but I don't think anyone opposed action after the facts became known.  I certainly think it would be really hard for anyone to try to argue that American courts weren't largely credible (despite my own liberal grumblings on the topic).

I agree, anyway, that we should be thinking of that case.  But we should also be thinking about other possible cases: the deeply unpopular jerk (or political dissident) who gets convicted of something relatively harmless.  We need to assume that someone will try to abuse the power we're giving to the people in charge, and build in reasonable safeguards.

I wouldn't be averse to excising 7.2.10 and debating it separately, if the rest of the bill is uncontroversial and won't attract a Royal veto.

I don't know of any reason why any of this would draw a veto, since as far as I can see, none of His Majesty's objections would remain if the process and rule-of-law issues were fixed.  Obviously I can't speak for His Majesty, but everything seems on the up-and-up (even though we might want to bug Sir Cresti to take a look once we're farther along).

[Baron Alexandreu Davinescu]

1. Was someone convicted of a crime that matches the definition of stuff we really don't like?
2. Was this conviction fair (ie, was it in a place like Auckland or a place more like Tehran)?

So then, the process of deciding if we should give any credibility to the court.  I don't know what we'd call it.  Maybe a crieisteac'ht - a credit-hearing?  I'm fond of a good portmanteau neologism, but not married to it.

The person in question is going to be unlikely to defend themselves, so they need state representation -- does the public defender proposal already here cover them enough?

The thing to probably do, if we think about how it will play out, is that a prosecutor would just need to bring charges that pass a hearing with a judge, who would need to decide based on a set of standards we set.

Maybe something like this:

A charge of bringing Talossa into ill-repute may only proceed to prosecution if a judge, after a full and fair hearing conducted in the presence of counsel for the accused, determines that the foreign conviction meets the following criteria:
1. The conviction is likely to qualify as the crime of bringing Talossa into ill-repute under the terms of 7.10.1,
2. The conviction took place after a full and fair hearing in a competent court of law.

[Miestră Schivă, UrN-GC]

Still thinking about this. Feel free to talk amongst yourselves.

[GV]

without the class system, there are no maximum lengths for civil disability or maximum amounts for fines now.

ESB got 18 years civil disability, which was later overturned, which IMHO was ridiculous. 5 years maximum civil disability? 500 louis maximum fine (which would be half our total treasury)?

Perjury definition corrected.

Such a fine could be 'paid' by way of a contribution to any non-religious charitable organization with proof of contribution being sufficient as the 'fine' having been 'paid'. 

[GV]

Still thinking about this. Feel free to talk amongst yourselves.

We need a durable and specific definition of 'treason'.

[Miestră Schivă, UrN-GC]

Still thinking about this. Feel free to talk amongst yourselves.

We need a durable and specific definition of 'treason'.

7.2.1 Whoever knowingly endangers the existence of the Kingdom of Talossa, its laws, institutions and state property, by enlisting or attempting to enlist the aid of non-Talossans, commits the felony of treason.

[Baron Alexandreu Davinescu]

without the class system, there are no maximum lengths for civil disability or maximum amounts for fines now.

ESB got 18 years civil disability, which was later overturned, which IMHO was ridiculous. 5 years maximum civil disability? 500 louis maximum fine (which would be half our total treasury)?

Perjury definition corrected.

Such a fine could be 'paid' by way of a contribution to any non-religious charitable organization with proof of contribution being sufficient as the 'fine' having been 'paid'.

Making this a general rule seems like it could lead to problems, with people deliberately donating to abhorrent causes to "stick it" to those who force them to pay a penalty.  Maybe it might make more sense to adapt it into a provision in the law which directs that BHAID issue recommendations on what part of a fine might be donated by the state and to which charities, where they deem appropriate?  Same result with more flexibility and less risk.

[Miestră Schivă, UrN-GC]

The person in question is going to be unlikely to defend themselves, so they need state representation -- does the public defender proposal already here cover them enough?

That was what I wrote it specifically to do, but I value any suggestions for improvement.

A charge of bringing Talossa into ill-repute may only proceed to prosecution if a judge, after a full and fair hearing conducted in the presence of counsel for the accused, determines that the foreign conviction meets the following criteria:
1. The conviction is likely to qualify as the crime of bringing Talossa into ill-repute under the terms of 7.10.1,
2. The conviction took place after a full and fair hearing in a competent court of law.

This is, like, 90% of the actual burden of proof for the crime, so I'm not sure it makes sense to put it into a preliminary hearing before a judge? Like, you'd want to have a "double trial"? If the accused has to retain and instruct counsel, exactly how are they saved any hassle by going through this process?

There is also the problem of: why is this crime so special that it needs a "double trial"? As opposed to, I dunno, treason or harassment within Talossa?

I get your point about not wanting to open the door to political prosecutions. But any crime can be open to a political prosecution. If you were to ask Lord Hooligan, I'm sure he'd say his own prosecution (out of the aftermath of the ESB Affair) was a political hit-job. If you want to avoid political prosecutions in general, then I would suggest something like a grand jury system. One which wouldn't indict a ham sandwich like its US equivalent, though.

[Miestră Schivă, UrN-GC]

Maybe it might make more sense to adapt it into a provision in the law which directs that BHAID issue recommendations on what part of a fine might be donated by the state and to which charities, where they deem appropriate?  Same result with more flexibility and less risk.

Or, much more simply:

A fine shall be payable to the Burgermeister of Internal Revenue, or to any appropriate charitable institution as the Cort may direct, and shall be considered paid upon receipt for that payment being received by the Cort.

[Baron Alexandreu Davinescu]

This is, like, 90% of the actual burden of proof for the crime, so I'm not sure it makes sense to put it into a preliminary hearing before a judge? Like, you'd want to have a "double trial"? If the accused has to retain and instruct counsel, exactly how are they saved any hassle by going through this process?

It's not a trial, but rather I hope it to be a preliminary hearing before a trial.  We don't have a grand jury system and I'm not sure it's feasible to create one, given the size of our active citizenry.  Creating a relatively low-stakes sanity check on a full-scale prosecution seems like one way to provide some degree of protection, especially since right now Talossan trial procedures tend to move without impediment from Government charges right to a full trial.

That said, maybe it makes sense to tweak the wording to lower the bar further -- rather than "likely to qualify," perhaps rework the wording to just make it clear it's a preliminary hearing?  I'll have to look at some similar examples (like maybe the SLAPP laws?  I'm out of my comfort zone at this point).

There is also the problem of: why is this crime so special that it needs a "double trial"? As opposed to, I dunno, treason or harassment within Talossa?

I could be persuaded that we need to reform trial procedure in its entirety and put more scrutiny on all indictments in general at the "reasonable chance" stage.  And speaking of, we should probably work up a Miranda list for Talossa: a notice that the Government is required to send to all of the accused, notifying them of their rights, the availability of a public defender, where to find relevant laws, etc.

I get your point about not wanting to open the door to political prosecutions. But any crime can be open to a political prosecution. If you were to ask Lord Hooligan, I'm sure he'd say his own prosecution (out of the aftermath of the ESB Affair) was a political hit-job.

I mean, I think that, too.  If nothing else, the treatment of the defendant was outrageous.  Charges were brought and dropped nine months later without any briefs being filed and without an apology.  The sitting judge rightfully said "[t]he Crown has undertaken a spectacular waste of this Cort's time" and that "[t]he Crown must be rather more thoughtful and careful in future cases, as it has demonstrated a disgraceful carelessness in this one."

But setting that aside as something about which we're likely to disagree, I'll note that you're right, anything can be a hit-job.  But we're talking specifically about criminalizing a conviction in a foreign court, beyond our own fact-finding and investigation.  If we're going to be ready to impose penalties on someone for something beyond their power to reasonably dispute, they need some protection.

In other words, just possessing this status will be a crime.  We're saying it is a crime to be a person who has been convicted of specific things in certain courts, and that the only burden of proof is "does this conviction exist," something that is usually just a records search away.  We have to afford people some protection and avenue to protest not only that their conviction fits the specified categories (which presumably will be what the trial is about) but also a chance to show that the conviction as a whole is unjust.  Further, we're also talking about people who may be unable to come to their own defense for some time by the very nature of the accusation (since they'll be in a prison).

I'm open to dropping the special hearing thing, but I think we should raise the bar for conviction generally, then.

[Miestră Schivă, UrN-GC]

In other words, just possessing this status will be a crime.  We're saying it is a crime to be a person who has been convicted of specific things in certain courts, and that the only burden of proof is "does this conviction exist," something that is usually just a records search away.  We have to afford people some protection and avenue to protest not only that their conviction fits the specified categories (which presumably will be what the trial is about) but also a chance to show that the conviction as a whole is unjust.  Further, we're also talking about people who may be unable to come to their own defense for some time by the very nature of the accusation (since they'll be in a prison).

All right. Give me an example how your ideal system would have pursued the prosecution and trial of I. Canún  with a trial for "bringing Talossa into disrepute".

BTW, the Government in re: Hooligan was guilty of entrusting the case (after 2 resignations) to an Attorney-General who didn't know what he was doing and gave up at the least sign of a robust defence. You are still clearly quite upset about the case, but your accusations about the motives behind it are slanderous and guaranteed to start a fight that should have been over 6 years ago. I personally think Hooligan had a case to answer and I am ashamed - not that the case was brought - that it was brought so incompetently that he never actually had to answer for his deeds. I would consider it a favour, in the interests of continuing civil debate over this legislative project, if you were to delete that paragraph (and I'll delete this one).

[Baron Alexandreu Davinescu]

In other words, just possessing this status will be a crime.  We're saying it is a crime to be a person who has been convicted of specific things in certain courts, and that the only burden of proof is "does this conviction exist," something that is usually just a records search away.  We have to afford people some protection and avenue to protest not only that their conviction fits the specified categories (which presumably will be what the trial is about) but also a chance to show that the conviction as a whole is unjust.  Further, we're also talking about people who may be unable to come to their own defense for some time by the very nature of the accusation (since they'll be in a prison).

All right. Give me an example how your ideal system would have pursued the prosecution and trial of I. Canún  with a trial for "bringing Talossa into disrepute".

I suppose it would have gone something like this:
1.  He'd be charged and a public defender would be appointed for him.
2.  The Government would ask for leave to prosecute him in absentia, which it would certainly get (since it's pretty easy to show that he can't be at the trial).
3. The initial hearing would be held, in which the Government would supply the US documentation and show how US courts are credible.  Hard to see how they would lose at this stage -- probably just checking the box.
4. The trial would occur, in which the Government would file a brief arguing that the conviction met the statutory definition.  Again, hard to see how they would lose.
5.  Sentencing would occur.

BTW, the Government in re: Hooligan was guilty of entrusting the case (after 2 resignations) to an Attorney-General who didn't know what he was doing and gave up at the least sign of a robust defence. You are still clearly quite upset about the case, but your accusations about the motives behind it are slanderous and guaranteed to start a fight that should have been over 6 years ago. I personally think Hooligan had a case to answer and I am ashamed - not that the case was brought - that it was brought so incompetently that he never actually had to answer for his deeds. I would consider it a favour, in the interests of continuing civil debate over this legislative project, if you were to delete that paragraph (and I'll delete this one).

You want me to delete that paragraph, even though it was almost entirely what the judge said?  I can do that, in the interests of continued progress.  I'll do that and delete all this, too, but please also remove your prior reference to the case and stop casually mentioning it in this discussion.  I'm not "upset," but blithe references to it are misplaced (unless you are indeed interested in the resulting discussion, but I do think it would put us off track).

[Miestră Schivă, UrN-GC]

1.  He'd be charged and a public defender would be appointed for him.
2.  The Government would ask for leave to prosecute him in absentia, which it would certainly get (since it's pretty easy to show that he can't be at the trial).
3. The initial hearing would be held, in which the Government would supply the US documentation and show how US courts are credible.  Hard to see how they would lose at this stage -- probably just checking the box.
4. The trial would occur, in which the Government would file a brief arguing that the conviction met the statutory definition.  Again, hard to see how they would lose.
5.  Sentencing would occur.

Okay. I don't have any objections in principle to this process; but explain to me how the two stages offer extra protection for the defendant. As opposed to a single trial where the prosecution would have to supply the documentation; show how the foreign court is credible; AND show how the crime meets the stat definition, and if it fails on any of those, the prosecution is lost.

Okay, different approach, for all felonies and serious misdemeanours we require a preliminary hearing of some kind?

BTW, forget about that other thing I asked for, it's not worth it.

[Baron Alexandreu Davinescu]

1.  He'd be charged and a public defender would be appointed for him.
2.  The Government would ask for leave to prosecute him in absentia, which it would certainly get (since it's pretty easy to show that he can't be at the trial).
3. The initial hearing would be held, in which the Government would supply the US documentation and show how US courts are credible.  Hard to see how they would lose at this stage -- probably just checking the box.
4. The trial would occur, in which the Government would file a brief arguing that the conviction met the statutory definition.  Again, hard to see how they would lose.
5.  Sentencing would occur.

Okay. I don't have any objections in principle to this process; but explain to me how the two stages offer extra protection for the defendant. As opposed to a single trial where the prosecution would have to supply the documentation; show how the foreign court is credible; AND show how the crime meets the stat definition, and if it fails on any of those, the prosecution is lost.

All of that is already true, except here we're providing an extra stage at the beginning where the loss will be immediate and easy -- a sanity check on an unjust prosecution.  The "reasonable chance" stage of a trial has never involved more than cursory scrutiny, and so I think a statutory supplement to it is warranted.  Referencing that part of the OrgLaw in the statute might make as much sense, in fact -- something to explicitly say that a higher standard of scrutiny is warranted in this case.

I'm not married to this approach, by the way.  There are other solutions possible to solving this problem.  If you don't like this idea, would you be open to just specifying a higher degree of scrutiny during the normal trial process?

BTW, forget about that other thing I asked for, it's not worth it.

Sure, no worries.