A SERVICE ON THE OCCASION OF THE OPENING OF THE LEGAL YEAR

 

12th January 2009 at 1.15 PM

Preacher: The Revd John Chynchen, Cathedral Chaplain

Readings: Jeremiah 15. 1 – 4; John 8. 2 – 11

My text is not the usual scrap of Holy Scripture. I owe it to a philosopher at the University of Toronto by name of R Z Friedman who has concluded, “Without religion the coherence of the ethic of compassion cannot be established. The principle of respect for persons and the principle of the survival of the fittest are mutually exclusive.”

 

I am not here to talk about myself; however, my introduction to both the legal profession and the legal system it administrates and services left me with lasting impressions — and non-erasable scars — that  have a bearing on what I think about your collective contribution to the well-being of  the rest of us.

 

At the end of 1949, I was waiting alone in a great marble-encrusted meeting room in the Royal Courts of Justice in the Strand. My mother emerged from a doorway…distraught and supported by her Counsel and solicitor. She had lost the custody battle…a Mr Justice Barnard had decided that I was to be handed over to my father. She appealed and lost again…Lord Chief Justice Goddard said that an 11 year old boy belongs with his father…full stop! There was a dissenting opinion from a promising judge by name of Denning. I, transported to a new life and a miserable year in Newcastle-upon-Tyne, eventually ran away and hitchhiked back to London. My mother re-visited Judge Barnard who reversed his previous decision, handing me back to mother while ensuring, by making me a ward of the court, that her Australian, second husband couldn’t take us off to Australia

 

If, as is frequently asserted, the moral foundation of this legal system—which is so spontaneous as hardly to seem a system—is the Judaeo-Christian outlook institutionalised as the rule of law, it would appear that Lord Goddard confined his reading to the Hebrew scriptures and was encouraged by the likes of the Almighty’s intemperate outburst to Jeremiah, read to us earlier. His Lordship would have been aware that my mother was the guilty party in her divorce—an adulteress—at the tail-end of a world war when many a relationship experienced great tensions. I wonder if the great judge ever reflected upon the Gospel and the New Covenant. Jesus said, ‘Neither do I condemn you. Go your way and from now on, do not sin again.’

 

Apparently, upon his appointment to the New South Wales Supreme Court, Santow J seemed at a loss as to a judge’s proper role. “On the one hand”, he wrote, “we are expected to be knowledgeable about the ways of the world, of community concerns. Yet we are also expected to avoid controversy, doing nothing to endanger the perception or reality of impartiality. Do we become priests in plain clothes, one foot in the outside world, the other in a monastery?”  I don’t know how many of the judges here this morning share those thoughts but they certainly strike a chord of understanding and sympathy with this priest, here and eagerly reaching out in search of common ground. It may be that, given the complexities of life in the 21^st century, both judges and priests might need to distance themselves from the monastery so that the judiciary and clergy can become more attuned to the values and expectations of society at large.

 

As we watch the unfortunate, legitimate Palestinian residents of the Gaza strip being pulverised by unopposed air power, we hear again frequent reference by politicians and pundits to the concept of proportionality, a principle supposedly shared in applications of the law. In any crime, the degree of punishment extracted is a symbolic statement of the degree of harm done and a measure of its evil. That proportionality is clearly what the Judaeo-Christian tradition has always taught.

 

Modern prisons had their genesis in Western Europe and the United States of America and the principles of imprisonment which exist in our society today owe much to institutional Christianity and the concepts of admission of guilt (sin), expiation and a firm purpose of atonement, amendment, repentance…leading to forgiveness.

 

One is reminded of the words of Sir Alexander Paterson, the famous English Prison Commissioner in the first half of the last century: ‘A prison is variously regarded by the casual outsider as a cloakroom for trial prisoners, a dustbin for nuisances, and a limbo for those whom society is reluctant to see again. The word merely connotes a place of confinement, where men have to be kept in custody for many different reasons. As a result the prison is apt to become an omnium gatherum, a convenient receptacle into which a puzzled Court may put anyone for whom no alternative method of disposal is very obvious.’

 

Dr Andrew Coyle, a former Governor of London’s Brixton Prison, describes how in prisons we come across people who have been accused of all sorts of crimes and offences. At one end of the spectrum are those who by any definition have been involved in the most serious breaches of the criminal law. At the other end are the casualties of our modern, pressurised society. They are unable to cope with its demands. Their need is more for care than for custody. In between the two extremes are a large number who have fallen foul of the law because of wrong decisions which they have made or because of the circumstances in which they have found themselves. There is also a significant proportion who will be found not guilty of the offence with which they had been charged and who will in due course be released.

 

May we give thought to moving beyond the notion of retribution, suffering and the infliction of pain and on to the concept of repairing the damage which has been done, to restoring the balance between the victim and the offender, to bringing the offender to a realisation of the harm which has been done and of the need to make amends? It will give victims the satisfaction of knowing that the pain and hurt which they have suffered is understood and regretted. We must not allow public commentators to expropriate the Christian principles of guilt, punishment and retribution without going on to the final principle of forgiveness. Relational Justice, with its close affinity to Judaeo-Christian beliefs, has the possibility of offering a more Christian solution that is based, not on a wish to compound the damage and destruction which has been caused by a criminal act, but the belief that crime itself can be used as a vehicle to repair and reconstruct relationships within society.

 

At a time when a creeping social Darwinism is on the rise, where life is measured in terms of its “quality” or “usefulness” the Church remains the last bastion of defence for those who would find themselves close to being jettisoned by society. The doors of the Church are never shut to such as these. We seek to embrace an understanding of humanity and the individual where all life is God-given and God-breathed. My colleagues and I are called upon, not infrequently, to write letters seeking mitigation on behalf of individuals awaiting sentence and, from time to time, to visit them in Remand Centres. The vast majority of those letters are related to cases in the lower courts. I do harbour certain concerns and will leave you with a very recent, not atypical, example.

 

A man from England who used to work for me was married in this Cathedral eight years ago to a local Chinese woman. They have a child and live in Kowloon. Responding to an advertisement making extravagant claims as to the benefits of a fish oil product, she bought many bottles at a well-known chemist shop. The child showed side effects so the mother took the remaining bottles back the chemist and asked for a refund, which was refused. Refunds are not entertained over 14 days. Angered by the ‘palm-off by big business’, she purchased a second batch of fish oil, copied and, stupidly, altered the receipt and returned to claim a refund for both lots. The police were called, she was arrested, charged and found guilty of fraud, refused bail and shunted off to the remand centre three days before Christmas for sentencing on 5th January…when she was released.

 

Meanwhile, far away in New York — under a similar Common Law Criminal Justice System, Bernie Madoff is still out on bail having enjoyed the holiday season in the comfort of his luxurious home. I wonder how many bottles of cod liver oil you can buy for 400 billion Hong Kong dollars! Amen.