Week 2 - Criminal Process 1 PDF

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Criminal Process Practice...

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Week 2 - Criminal Process 1: 2.1 Discretion: Criminal law is not ‘self-executing’: discretion. Factors of Influence: 1. 2. 3. 4. 5. 6. 7. 8.

Social - educational Economical Political Environmental Ethnic/racial Sexuality Psychological Statute and case law

Decision-makers: - Vicums - The public - Witnesses - Police * - Defendants - Prosecutors * - Jurors * - magistrates/Judges * *Some regulation of use of discretion.

Police Discretion: ● Not a bad thing per se: how it is mis/used is the issue ● How police exercise discretion if especially important - Determines whether/how the criminal law is invoked ● Parliaments regularly pass laws that require police to exercise discretion (Law Enforcement (powers and responsibility) Act 2002 (NSW) (LEPRA) + CL *Rhondo - Eg. Move on powers, arrest, offensive language ● Even when discretion is “structured’ legend often loosely drafted.

Process as punishment (Feeley) ● Being on the receiving end of a police decision to apply the law can feel like punishment even though guilt is not yet established (summary penalty) largely outside the structure of due process adjudication. ● Accountability challenge: Police discretion is often exercised beyond the threshold of public visibility and judicial accountability. ‘Constructing the suspect population’ (McConville et al): ‘Racial profiling is the adverse use of polcie discrentinary decision-amking based on assumptions cocnerin the racial characterusits of indivudlas. It involved police making decisions to initiate contact with individuals on the basis of their race or ethnicity. These decisions typically involve police stopping, searching, questioning or requiring individuals to “move-on” on the basis of their race rather than decisions based upon reasonable suspicion.’ Summary: - In any encounter police use discretion - Police discretion operatera ‘on the street” and largely invisible - Options range from “do nothing’ to exercise a police power: (warn, caution, moveon,search, issue a penalty notice, Court Attendance Notice (CAN), YOuth justice conference, arrest, use of force.

2.2 Move on Powers: Move-on powers: Law enforcement (powers and Responsibilities) Act 2002 (LEPRA) part 14: 197 Directions generally relating to public places (1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable ground that the person’s behaviour of presence in the place (referred to in this part as relevant conduct): (a) Is obstructing another person or persons or traffic, or (b) Constitutes harassment or intimidation of another person or persons, or (c) Is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable fitness, or (d) Is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or person to unlawfully supply, any prohibited drug, or (e) Is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess. (2) A direction given by police officer under this section must be reasonable in the circumstance for the purpose of: (a) Reducing or eliminating obstruction, harassment, intimidation or, fear, or, (b) Stopping the supply, or soliciting to supply, of the prohibited drug, or (c) Stopping the obtaining, procuring or purchasing of the prohibited drug. (3) The other person or person referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in. (4) for the purposes of subsection (1) © no person of reasonable fitness need actually be or likely to be present at the scene. Public Intoxication - ‘Move-on’ powers: section 198 of LEPRA 2002. How does ss 197 and 198 regulate police discretion? ● S 197 regulates police discretion only very broadly via: - ‘Reasonable grounds’ - Defn of relevant conduct - By confirming what is ‘reasonable’ discretion in the circumstance - Following the procedural requirements in pt 15. What is a reasonable suspicion? R v Rondo (2001) 126 A Crim R 562. At [53]; “(a) A reasonable suspicion involves less than reasonable belief but more than a possibility. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown.” (c) what is important is the information in the mind of the police officer at the time. Procedural requirements/safeguards: LEPRA part 15 - Section 201.

2.3 Police powers and SMTP: ● BOSCAR ● STMP (suspect targeting management Plan) - “The purpose of the STMO is to identify, assess and target people suspected of being recidivist offenders or responsible for emerging target common resources to prevent and address identified current crime problems”. (pg.5) - In operation since 2000-revised in may 2005 - Used statewide by LACs - No legislative basis (ie not in LEPRA 2002) and not publicly available - Very little visibility until report by Youth Justice Coalition (OCt 2017) - 4 categories of risk assessment (algorithm): Extreme risk, high risk, medium risk, low risk. - Individuals not notified that they are on a SMTP list, or how to get off the list. - Individuals and their families subjected to high levels of surveillance and police contacts - Over-representation of Aboriginal young people (44%) - LET's Analysis of SMTP: significant in the degrading and highlighting issues associated with unjust and oppressive nature of SMTP. - BOSCAR, An evaluation of Suspect target Management plan (Feb 2021): Aim: to see weather these programs are effective in reducing crime. Outcome: They are in fact associated with a reduction in crime. - As young as 12 years of age, however new rules change it unless extreme risk must be over 14 with some exceptions....