Class 17 - NOTES FOR LAWS1021 - CONSORTING PDF

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Class 17: Criminalisation (4) Normative Theories of Criminalisation; Case Study; Consorting Pages 71-82 2.2.13 Is the criminal law a lost cause? A Ashworth, ”Is the criminal law a lost cause?” • The sheerbulk of English criminal law makes it highly unlikely that the substantive content of the offences conforms to a single test or set of related tests • In examining all statutes passed in 1997, a small survey which highlights some noteworthy features of the existing criminal law o First, the bulk of new offences may be described as regulatory, in the sense that they form part of statutory schemes for the regulation of certain spheres of social or commercial activity, and are generally enforced by the regulatory authority rather than the police o Secondly, the bulk of new offences are generally characterised by three features – strict liability, omissions liability, and reverse onus provisions for exculpation These features are inconsistent with the prominent elements of the rhetoric of English criminal law – that there is a presumption that mens rea is a prerequisite of criminal liability, that liability for omissions is exceptional, and that “one golden thread” running through English criminal law is that the prosecution bears the burden of proving guilt • Despite the disorderly state of the English criminal law, it appears that the government does profess some principles for criminalisation. In response to a parliamentary question, lord Williams of Mostyn has stated that offences “should be created only when necessary”, and that “in considering whether new offences should be created, factors taken into account include whether: o The behaviour in question is sufficiently serious to warrant intervention by the criminal law o The mischief could be dealt with under existing legislation or by using other remedies o The proposed offence is enforceable in practice o The proposed offence is tightly draw and legally sound; and o The proposed penalty is commensurate with the seriousness of the offence • Government also takes into account the need to ensure, that there is consistency across the sentencing framework •

Ashworth then moves from the “descriptive to the normative” to “consider whether it is possible to identify criteria or standards that ought to be satisfied before it is decided to criminalise certain conduct – some of which may be similar to the principles which, according to the Lord Williams, inform current practice”

2.3 Normative Theories of Criminalisation 2.3.1 Ashworth on Principles A Ashworth, ”Is the criminal law a lost cause?” •

Ashworth focusses on two key points: 1.

The criminal law is a lost cause from the perspective of principle (i.e. there is no principled approach underpinning its content) a. Governments simply give way to popular opinion (e.g. penal populism) or do not care sufficiently to adhere to their own principles. b. Suggests that this context requires a need to rekindle debate on the functions/characteristics of criminal law and the interconnection between offences, procedure and sentencing.

2.

A normative motivation to identify a ‘principled core’ of criminal law, consisting of four interlinked principles: a.

The criminal law should only censure persons for substantial wrongdoing i. Recognises that serious conduct warrants censure through criminality; but notes that prevention alone is not a sufficient reason for criminalisation and that the criminal law alone, is not necessarily an effective means of prevention. ii. Notes that there is a tendency to overestimate the deterrent efficacy of criminal sentencing iii. Suggests that appropriately targeted social, educational and housing policies may well have a greater preventative effect than increasing criminality

b.

Criminal laws should be enforced with respect to equal treatment and proportionality i. Enforcement authorities and their policies ought to be reorganised so as to reflect the relative seriousness of the wrongdoing involved ii. Should not remain bound in obsolescence to traditional divisions of responsibility that fail to reflect proper assessments of the culpable wrongs involved.

c.

Persons accused of substantial wrongdoing ought to be afforded a set of appropriate minimum protections i. Referenced articles of the European Convention on Human Rights ii. Notes that these minimum protections should be regarded as an inherent element of criminal procedure iii. Argues that if a wrong is serious enough to warrant criminality and serious penality (e.g. maximum sentence), it would be a violation of this principle for the government to reduce the accused’s procedural protections

d.

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Ashworth also acknowledges that there are present many minor wrongs that have been criminalised merely because criminal courts offer themselves as a cheap and expedient means of resolution, e.g. progressive enactment of many strict liability offences is part of this trend. o

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Maximum and effective sentences should be proportionate to the seriousness of the wrong i. Suggests that there must be a systemic ‘root and branch’ reform of maximum penalties and a re-assessment of the sentence levels and the relevant differentials.

Proposes a possible solution in the creation of a new category of crimes, termed as ‘civil violation’ or ‘administrative offences’ which would be non-custodial and attract a pecuniary penalty. Check this.

Suggests that a new criminal code ought to declare the ‘most serious offences’, in accordance with a minimalist approach that argues that the criminal law should retain the most serious behaviours rather than submerging itself in a myriad of smaller administrative or regulatory offences. o o

However, this proposition may reduce the deterrent perception of criminal penalties, i.e. if a wrong is not one of the serious crimes in the code, people may not consider it a deterrent. This approach may have unexpected adverse consequences, e.g. Freakanomics example of failed fines in day care centre

Ashworth – how to determine criminality •

Ashworth also considers principles relevant to considering whether conduct should be criminalised: o Acknowledges difficulty of forming an ‘objective benchmark of criminality’ or a general normative theory.

Criminal law is a mechanism for the preservation of social order, where criminalisation amounts to a declaration that certain conduct is a public wrong that should be avoided, upon threat of punishment. Argues the building blocks of criminalization decisions are that the conduct must be harmful, wrongful and of public concern. Main determinants of criminalization continue to be political opportunism and power. o o

The decision to criminalise is a serious one and should not be made ‘on balance.’ Notes that in a liberal democratic state, there is something equivalent to a ‘right not to be punished’, which places the burden of proof firmly on those wishing to criminalise non-criminal activity.

o

Minimalist approach is based on a particular conception of the criminal law and has four main components: 1. Principle of respect for human rights 2. Right not to be subjected to state punishment 3. Criminal law should not be invoked unless other techniques are inappropriate 4. Conduct should not be criminalised if the effects of doing so would be as bad or worse than not doing so

2.3.2 Criminal Responsibility and citizenship • Antony Duff has developed what he calls a “communicative” or “relational” theory of criminal responsibility • In duffs theory, a rational moral agent who is a citizen is called to account by a criminal law acting on behalf of fellow citizens and the polity for core wrongs legitimately established in its substantive and procedural norms • The accused is required to given an account of their actions if they do not escape responsibility. The theory is “communicative” because it is based on the idea that the criminal hearing or trial is a moral communication between citizens, with the defendant respected by being treated as a full moral agent answerable for their conduct • A difficulty of this theory is what might be the implications of this theory of criminal responsibility if the defendant has, through various forms of discrimination and injustice, been denied the benefits of citizenship and full participation In the polity? Could, duff asks, such a defendant “to not argue that whatever wrongs he has committed the polity lacks the standing to call him to account to them?” 2.3.3 Internal and External Constraints on Criminalisation D Husak, Overcriminalisation: The Limits of the Criminal Law •

Husak – influenced by overcriminalization in the US and developed a set of general principles or constraints designed to limit the authority of the state to enact penal offences by requiring appropriate and stringent justification for new penal statutes. o

The most basic question – ‘for what conduct may the state subject persons to punishment?’

o

Argues that all criminal laws infringe upon rights through penality (which cannot be justified by mere utilitarian reasons), such that there is a general right not to be punished. Because all criminal laws implicate this right, there must be a stringent test of justification applied to all penal legislation.

o

o

Provides a series of constraints that govern this test: Internal constraints – derived from the criminal law itself and addresses individuals who are punished, considering why these individuals should be subject to penality in different circumstances.

External constraints – depends on a controversial normative theory developed from outside the criminal law; and addresses the citizens/communities that establish institutions of criminal justice. •

Husak – argues for four distinct principles limiting the authority of the state to impose penality for conduct creating a risk of harm (rather than harm itself), i.e. inchoate crimes such as attempt, incitement, conspiracy and drug possession. o

Many of these offences are over inclusive and unjustified. 1. The substantial risk requirement – these offences are justified only if they are designed to reduce a substantial risk. 2. The prevention requirement – only justified if it actually decreases the likelihood of the ultimate harm. 3. Consummate harm requirement – an offense to prevent the risk of harm is justified only when a statute proscribing conduct that deliberately and directly causes that very harm would be justified as well. 4. The culpability requirement – an offense designed to reduce the risk of ultimate harm is justified only when defendants act culpably with respect to the ultimate harm risked.

2.3.4 A “public wrong” which “violates polity’s civil order” Antony Duff, The Realm of Criminal Law 2.3.5 An “institutional” theory • In making the modern criminal law, Farmer argues that a normative theory of criminalisation requires a “richer account” of what the criminal law is, what it is for, and what is sought to achieved by it. He argues that many normative accounts approach criminal law by “reducing the aims or function of a complex institution to claims about the justification for punishment” and that criminal law “should not be approached as a prima facie moral question, as something that can be defined as priori and independently of the legal institution” Lindsay Farmer, Making the Modern Criminal Law: Criminalisation and Civil Order Pages 85-88 2.3.8 Contextual v normative: the limits of rapprochement D Brown, “Criminalisation and normative theory” 2.3.9 providing an empirical foundation: modalities of criminalisation • •

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McNamara and colleagues have focused on identifying a variety of modalities and processes of criminalisation They draw on the findings of a pilot study of more than 140 criminal law statutes enacted in three Australian jurisdictions from 2012-17 across 10 criminalisation sites: homicide, sexual assault, domestic violence, alcohol related violence and public order, consorting and association, fraud and financial crime, driving offences, food safety regulatory offences, and ail and parole They suggest that a modalities/processes approach supports a more nuanced appreciation of the conditions under which criminal law statutes are produced, and facilities scrutiny of whether legislative enactments are evidence-based, and a product of meaningful consultation and genuine democratic participation in law marking

L McNamara, J Quitler, R Hogg, H Douglas, A Loughnan and D Brown, “Theorising Criminalisation: The Value of a Modalities Approach” (tbh idk if we needs this because the above summarises it) Pages 1240-1250

13.4 Criminalising Association • • •

There are two rationales for pre-emptive criminalisation in the form of extending liability First this approach is seen as consistent with the pursuit of security and prevention of risk, particularly the risk posed by identifiable groups Second in response to this type of risk posed by a group, an offence of association may be used to stigmatise the organisation itself and mark it as illegitimate

12.4.1 Consorting 12.4.1.1 History • Persons charged with this offence can escape liability if they satisfied the court that they had lawful means of support or had a lawful excuse for being in the place in question • Often the threat of a consorting charge was used as a lever to extract information about the misdeeds or plots of others • After a period of some disuses, consorting laws were revived by the vagrancy (Amendment) act 1929 with the menace of the razor gangs in Sydney • The summary offences act 1970 contained two types of consorting offences: o Section 24(1): A person who in company with reputed drug offenders or other reputed criminals or with persons who have no visible lawful means of support is found in premises frequented by reputed drug offenders or other reputed criminals or by persons who have no visible lawful means of support is guilty of an offence. Penalty : Two hundred dollars or imprisonment for three months • On a number of occasions over the years, courts have commended on the potentnial harshness of consorting laws: a person can be punished where they have committed no crime – apart from consorting with “repute criminals” • Under the old SOA 1970 consorting provisions, main purpose of the consorting offences was to use the threat of prosecution as a lever to extract info • After the changes effected by the repeal of the SOA 1970, s546A was added to NSW Crimes Act: Any person who habitually consorts with persons who have been convicted of indictable offences, if he or she knows that the persons have been convicted of indictable offences, shall be liable on conviction before the Local Court to imprisonment for 6 months, or to a fine of 4 penalty units. o This provision was considerably more restrictive than the old offence in so far as 1) it related only to habitual consorting with persons actually convicted of indictable offences and 2) the prosecution had to prove as an essential ingredient of the ofence that they accused knew of these prior convictions 13.4.1.2 2012 Revival •

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Consorting was revived inot the crimes amendment (Consorting and organised crime) act 2012. Now, found in s 93X of the crimes act, the offence of consorting now carries a max penalty of three years imprisonment and a $16,500 fine In its current, form s 93X states: (1) A person (other than a person under the age of 14 years) who-(a) habitually consorts with convicted offenders, and (b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence. : Maximum penalty--Imprisonment for 3 years, or a fine of 150 penalty units, or both. (2) A person does not "habitually consort" with convicted offenders unless-(a) the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and (b) the person consorts with each convicted offender on at least 2 occasions. (3) An "official warning" is a warning given by a police officer (orally or in writing) to the effect that--

(a) a certain person is a convicted offender, and (b) habitually consorting with convicted offenders is an offence. (4) An official warning ceases to have effect for the purposes of subsection (1)-(a) if the warning is given to a person under the age of 18 years --6 months after the warning is given, or (b) in any other case--2 years after the warning is given. •

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Under 93W, consort means “consort in person or by any other means, including by electronic or other form of communication” and convicted offender “means a person who has been convicted of an indictable offence (disregarding any offence under section 93X)” Section 93Y(1) provides a list of “forms of consorting” in relation to which an accused person may assert a defence “that the consorting was reasonable in the circumstances” o (a) consorting with family members, o (b) consorting that occurs in the course of lawful employment or the lawful operation of a business, o (c) consorting that occurs in the course of training or education, o (d) consorting that occurs in the course of the provision of a health service or welfare service, o (e) consorting that occurs in the course of the provision of legal advice, o (f) consorting that occurs in lawful custody or in the course of complying with a court order, o (g) consorting that occurs in the course of complying with-(i) an order granted by the Parole Authority, or (ii) a case plan, direction or recommendation by a member of staff of Corrective Services NSW, o (h) consorting that occurs in the course of providing transitional, crisis or emergency accommodation. Section 93X was the governments response to heightened anxiety about organised crime gangs and gun violence, following media coverage of a number of drive-by shootings in syd 2012 Attorney general stated that the goal of the consorting was to “Deter people from associating with a criminal milieu” In 2014, 3 men who had been charged with consorting challenged the constitutional validity of s 93X, arguing that it was an unjustifiable infringement of freedom of political communication and freedom of association

13.4.1.3 Section 93X in operation NSW Ombudsman, The Consorting Law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900 The controversial nature of the consorting law – section 93X is a controversial offence for a number of reasons: • • • • • • • •

that it can criminalise otherwise innocent behaviour it seeks to control future conduct it potentially has a widespread impact as a significant proportion of the NSW population has been convicted of an indictable offence it may impinge upon the rehabilitation and privacy of convicted persons there is no available review process for persons issued with a warning a defence of reasonable excuse is not available once a warning is made it is made indefinitely, and the Police officer is not required to have a reasonable belief that issuing a warning will deter future criminal activity

Is the consorting law operating fairly and reasonably? •

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Consorting is a controversial offence as it involves ‘the criminalisation of ordinarily harmless and seemingly innocent behaviour in order to allow authorities to intervene at an early stage’ and attempt to prevent or reduce future offending. While the reading speech linked the intent of the Bill as a whole to the policing of criminal groups and organised crime, discussion of the intent of the consorting amendments was restricted to modernising the offence of consorting and deterring people from ‘building criminal networks’ or ‘mixing in a criminal milieu’. At the outset, the NSW Police Force made a policy decision not to limit use of the consorting law to serio...