Taking Prosecution Away From The Police

The Goa police deserve all the ignominy that can be heaped upon them for their biased handling of the Scarlett Keeling case.

Even the two autopsies carried out on her body were ‘illegal’, according to European forensic experts, who performed yet another autopsy after the body was taken there.

There is a simple solution to this – and it goes as follows.

All crimes are against individuals.

There are no crimes against the State – except, maybe, treason. There are no 'victimless crimes' - so legislation against these can be thrown out.

Thus, the individual must be free to prosecute his own case.

Now, if courts award financial compensation to all victims of crime (who prosecute their own cases) – then the scenario that will soon unfold will be like this: as soon as an individual becomes a victim of crime, private lawyers will descend upon him with offers to take up his case in exchange for a small percentage of the compensation/damages that will be awarded. Even the very poor will have access to justice in such a setting.

Recall that the goof-up in the Jessica Lal murder case was precisely in the area of prosecution. At that time I had argued for ‘market justice’.

Today, I believe ‘criminal justice’ is a hoax. It is based on the notion that crimes are against the State and that the State must prosecute and punish those found guilty. The police therefore become a monopoly agency for investigation, prosecution as well as punishment. Monopolies are always bad for society.

This system does not work. It cannot work.

On the other hand, a system in which all crimes are against individuals, and these individuals are free to collect evidence and prosecute those who cause them injury and harm – such a system can work.

Because all the incentives will be in the right place.

Further, if ‘punishment’ based on the idea of ‘retribution’ is replaced by ‘compensation’ based on the idea of ‘restitution’, then the right incentives will exist for lawyers, private detectives, private forensic laboratories et. al.

A good book to read on this is Bruce Benson’s The Enterprise of Law: Justice Without the State. The book reveals that prosecution was always private in Britain.

As this quote indicates, it still is.

“Public prosecution in England required a legal fiction, however. Under common law, prosecution is still private: “English common law maintains that police officers are not distinct from the general body of citizens… therefore, when a police officer initiates a criminal proceeding he is legally acting not by virtue of his office but as a private citizen interested in the maintenance of law and order.” Theoretically, then, the vestiges of Anglo-Saxon law’s reliance on private prosecution remains.”

That is the way we must go if we are to obtain justice.