… this is how the regulatory state operates.
The inescapable conclusion is that Pell was prosecuted on an unwinnable charge for two reasons: first, that there were those within the justice system, particularly the police, who were determined to destroy him; second, that there was a large segment of the media, fuelled by the police and “victims’ lawyers”, that so clamoured for Pell’s conviction that the weaknesses of the case against him were drowned out by howls of accusation.
But with Pell, the police pursued him relentlessly, improperly and publicly. Repeatedly, the Office of Public Prosecutions refused to put the police charges. Finally, the police themselves forced its hand.
The same police force that stalked Pell, giving regular press conferences along the way referring to his “victims”, and briefing selected journalists, is now the subject of a royal commission, effectively into their use of a defence lawyer as an informant.
This is less a culture than a drain.
Now just to be clear on what happened – here is their ABC:
Detectives have been accused of “single-mindedly” pursuing charges against Cardinal George Pell as a Melbourne court heard Victoria Police set up a taskforce to investigate Australia’s most senior Catholic cleric before receiving a complaint against him.
Details about the police probe, Operation Tethering, were revealed in court for the first time on Wednesday as one of the detectives who flew to Rome to question the Cardinal gave evidence.
Detective Superintendent Paul Sheridan told the Melbourne Magistrates’ Court that the investigation into Cardinal Pell began in March 2013 to ascertain whether he had committed crimes which had gone unreported.
Victoria Police opened an investigation into an Australian citizen to determine whether “he had committed crimes which had gone unreported“. One would have thought that there is good reason why we might have social conventions against such behaviour – even laws against the fabrication of evidence, but it turns out that proponents of the regulatory state view this sort of thing as a feature and not a bug.
Harvard economist Andrei Shleifer (with various co-authors) has written a lot on regulation and the regulatory state (he has written a lot about a lot of other stuff too). In a 2001 paper (with Ed Glaeser and Simon Johnson) he sets out a model of enforcement that trades-off incentives between judge-enforced regulation and bureaucracy-enforced regulation.
In our view, the crucial distinction between judges and regulators is that the latter can be more easily provided with incentives to punish violations of particular statutes. Judges, in contrast, are by design more independent and therefore harder to motivate. The stronger incentives of the regulators have the benefit of bringing about more aggressive enforcement than can be achieved through courts.
Yet these incentives also have the potential cost of excessively aggressive enforcement when regulators motivated to find violations penalize innocent suspects. There is thus a trade-off between enforcement by judges facing relatively weak but unbiased incentives and enforcement by regulators facing stronger but possibly biased incentives.
That is the problem – regulators (and the police are particular regulators) are “motivated to find violations”. They go out and look for trouble even when there might be none. Thinks about the police fining 17 year old learner drivers and the like. They then penalise “innocent suspects”.
Regulatory agencies don’t wait for trouble to manifest itself – they go looking for trouble. Given how bureaucracies are funded it is unsurprising then that they find trouble.
So anyone who is appalled by Pell’s treatment at the hands of the police should know that every other regulatory agency in Australia behaves in the same way.
That, of course, does not absolve the rest of the Victorian criminal justice for its catastrophic failure in the Pell case.