LAWS1021 EXAM NOTES
OVERVIEW--- 2
CRIMINALISATION Defining Crime and Moral Panics ---3
Normative Theories and History ---7
Colonialism and Governmentality ---11
THE CRIMINAL PROCESS The Ubiquity of Discretion---14
McBarnet and Contemporary Research---16
The Adversary System and Expansion of Summary Jurisdiction ---18
The Process as Punishment ---22
Bail ---25
Miscarriages of Justice ---29
POLICE POWERS Discretion, Regulation and Crowd Control ---31
Search Powers and Reasonable Force---34
Arrest Powers ---36
Detain and Interview Powers---37
COMPONENTS OF CRIMINAL OFFENCES Actus Rea and Mens Rea ---39
Strict and Absolute Liability ---42
DRUGS Criminalisation and Harm Minimisation ---43
Drugs Offences: NSW Law ---47
PUBLIC ORDER Regulating Public Spaces ---48
Racist Language, Public Drunkeness and Graffti ---50
EXTENDING CRIMINAL LIABILITY
Criminalising Association ---53
-GENERAL OVERVIEW-
• The common sense view that everyone recognises a crime when they see one is inadequate, even for ‘core’ crimes. Furthermore, the content of criminal laws and criminal agency forms are constantly changing. Lastly, wide variety of behaviour that are criminalised at any particular time suggests attempts to distil any common essence of criminal conduct will prove extremely
difficult, if not impossible. [58]
•
Risk prevention in recent years advanced as a justification for criminalisation of a range ofbehaviours and activities such as terrorism, for extension of criminalisation to new subject groups such as motorcycle gangs and for procedural changes, such as those in relation to bail. Husak’s theory of ‘crimes of risk prevention” would mean “many implicit offences of risk prevention”
such as drug possession “are almost certainly over inclusive and presumptively unjustified”.
•
Policing and various practices of the criminal process play a significant role in determining what constitutes the criminal law. E.g. public order offences-particularly offences which areexceedingly vague and in relation to which the exact fault elements are uncertain, e.g. offensive behaviour.
•
A concise overview of the history of 18th century England criminalisation practice can be found on [76]-[79]•
CODIFICATION TO COMBAT POLICE CORRUPTION- Primary impetus to introduce the Police and Criminal Evidence Act 1984 (PACE) model from UK came from the Wood Royal Commission, can help in: i) balance between effective law enforcement and individual right protection ii) clarifying uncertainties, reducing potential for arbitrary power abuse (ignorance), iii) assist in policetraining
• VIOLATION OF PRESUMPTION OF INNOCENCE
• (ASHWORTH AND BLAKE)-40% of triable offences in the Crown Court appeared to violate this principle, this principle is useless if P remains free to dispense entirely with proof of parti.
element/ fault. (shortcomings of imposing strict liability). Even if jury understands the law, it may ignore it and bring in ‘merciful’/perverse verdict. -e.g. the reluctance for juries to convict of murder battered woman who killed their partners-critical in reform of law relating to provocation.
• STATUS OFFENCES-P don’t have to prove any action on the part of the accused. Rather, criminal liability results from fact someone is found in a particular position-i.e. an offence in NSW if a person is intentionally a member of an organisation which they know to be a terrorist organisation.
• REPLACEMENT OF PRESUMPTION OF INNOCENCE WITH PRESUMPTION OF GUILT-through routine expectations and symbolisms, it is the D’s status rather than their location that implies guilt, this built into a pre-trial procedural system that implies innocent are exempted from the process of public proof.
• P434-Evidence Act 1995-s138-Exclusion of improperly or illegally obtained evidence
• P1080-1082-Historical Dimension of the Development of Drug Offences
-DEFINING CRIME & MORAL PANICS-
DEFINING CRIME WILLIAMS (1983)-[59]
• A crime is a legal wrong that can be followed by legal proceedings which may result in punishment –[weak justification]
• Argue above definition is not circular because criminal proceedings can be described without using the word ‘crime’-or needing it to be defined for the purpose of understanding what is said.
ASHWORTH (2000)-[60]-[61]
• Lord Williams of Mostyn claimed that offences “should be created only when absolutely necessary” and in considering whether new offences should be created, factors taken into account includes:
• Whether behaviour is sufficiently serious to warrant intervention by criminal law?
• Whether mischief could be dealt with under existing legislation/using other remedies?
• Whether proposed offence is enforceable in practice, tightly drawn and legally sound and penalty proportionate with offence seriousness?
• ASHWORTH & HORDER summarised their aim as: “Whereas welfare-based principles and policies of social defence are more relevant to criminalisation decisions, the rule of law and the principle of autonomy should have priority in relation to the conditions of liability, qualified only by a minimalist welfare principle”
COHEN [48]-NEW CRIMINALISATION-(1988)
• Trad crime model-list of crimesàtariffs, whether behav. Criminal or not depend on their appearance on this list.
• “Criminalisation is the process of identifying an act deemed dangerous to the dominant social order and designating it as criminally punishable”
• The emergence of ‘new criminalisation’ –“the virtual disappearance of decriminalisation from the agenda, and along with it any attempt to take a critical stance towards the concept of crime”
• CONTEXTUALISE FOUCAULT’S POWER ASSUMPTIONS-centrally focussed, based on and always relating back to the privileged position of the state, it is something one has and another doesn’t, and always operates in negative, repressive terms. Argues crime can’t be judged in purely negative terms-sometimes can create new knowledge, i.e. criminalising certain sexual activities creates new deviations from desired norm: E.g. How a male boss talks to a female secretary.
• ARGUES CRIME AS A WEAK FORM OF SOCIAL CONTROL- “It is because crime/non-crime is a dichotomous variable that the ambition of the criminal law model…is to apply the same yardstick in unique and diff situations”-contrast with social norms-subtle, continuous, and negotiable, theoretically there can be no degrees of criminality.
HUSAK [49]-OVERCRIMINALISATION (2008)
• “The extraordinary rise in the size and scope of the criminal law” –A great proportion of
contemporary punishments are unjust because they are inflicted for conduct that shouldn’t been criminalised at all.
• CRIMINALISATION OBJECTIVES UNDERMINED BY COMPLEXITY OF CRIMINAL STATUTES
• Increasing # and complexity of crim. statutesàpeople don’t receive adq. notice of legal obligations. Furthermore, ordinary lives are more likely to be unfairly disrupted, i.e unpleasant arrest experiences
• EXPANDING CJ SYSTEM incurs ENORMOUS OPPORTUNITY COSTS$$. Money and manpower are diverted from more urgent needs. (With exception of minority who profits from the ‘prison- industrial complex’
• A LACK OF RESPECT FOR LAW-The state can’t effectively stigmatize persons for engaging in conduct that few condemn and most everyone performs, parti. rules/ regulations perceived to be stupid are ignored/ circumvented by law-abiding citizens. Scope of criminal liability
expandsàstigma depletedàdeterrence effects erodes
• INCREASING CRIMINALISATION LEADS TO DESTRUCTION OF RoL- increasingly, proscribed behave. CANNOT be ascertained without straying beyond the boundaries of crim. statutes and examining non-CL, criminalising conduct that fails to satisfy even ‘our best theory of
criminalisation’.
• ‘COMMONSENSE’ APPROACH
• NAFFINE (2009)-[50,70]-DECONSTRUCTION OF RAPE AS A CORE CRIME-“If we focus on actual criminal legal norms & practices… the core wrongs begin to lose their clarity and their certainty” Rape rules mostly lead to exoneration of bad D behav, punitive to the victim,. (Less than 2% of reported rape in SA results in a conviction- rate). Hence, rape is not universally condemned, not criminal in a practical sense (low reporting, high attrition rates)
• HOGG AND BROWN-[52]-[53] (1998)
• Criticises ‘primary definers’-including Royal Commissioners, police, judges, AG, ‘who provide the primary account of “ the facts of the mater” in the process setting the parameters of debate- often denying value of rigorous research, accepted by citizens-since perceived to be
authoritative, neutral sources.
• Highlights Becker’s “hierarchy of credibility”-operates in favour of the views of select authoritative sources whose views enjoy wide circulation in popular media.
• Common sense is partial, NOT wrong, it refrains to deal with contradicting CS assumptions since it embodies tacit judgments and assumptions about the world that are harboured prior to the evidence of being gathered.
• Central assumption within crime debates is crime problems are criminal justice problems, CJ agencies such as police inhibited from dealing with them by lack of resources or powers-framing problems in such a way allows redress of imbalance that ‘favours’ criminals
• Argues we are confronted not with a crisis of law and order but rather a ‘crisis of perspective’
• ELEMENTS OF LAW AND ORDER COMMON-SENSE-soaring crime rates, ‘it is worse than ever”- law and order nostalgia, the future is NY/LA, the CJ system is “soft on crime” and doesn’t protect citizens, the “solution” is more police with more powers, we need “tougher penalties” and victims should be able to get revenge through the courts.
• PRATT-PENAL POPULISM-[53]-(2007)
• Penal populism can be partially understood in terms of political opportunism, which ‘buys’
electoral popularity by cynically enhancing levels of penal severity-assuming pertinent public support disregarding actual crime trends.
• POLITICAL OPPORTUNISM BACKLASH-As a result of the power realignment that penal populism represents, the politicians are just as likely to LOSE CONTROL of the public mood as to be able to MANIPULATE it for their purposes-unfulfilled rhetoric/empty promises.
• BUREAUCRATIC DISILLUSIONMENT with the existing political processes & declines in submission to elite opinion-formersà in citizens insisting on democratic expression/ give support to populist org./politicians whose solutions to decline crime rates are simple/ understandable.
• UNNECESSARY VICTIMISATION/RE-VICTIMISATION-Includes ordinary citizens whose name it claims to speak, murderers and rapist being parole fears are non-existent, and anger and disillusionment is created for the families of these prisoners.
• DANGER OF POPULAR PUNITIVENESS DRIVING CJ POLICIES-TONRY-(political)- i) Higher imprisonment rates, ii) Weaken civil liberties and protections against wrongful convictions, iii) Increased public anxieties and fears, undermined faith in legal institutions, and undermine notions of fairness and justice, all negatives of ‘populist posturing’, iv) Denigration of judicial expertise, v) A lack of concern with evidence and process, vi) The power of the shock jocks, tabloids and Police Association, and vii) Political failure to understand and defend fundamental legal principles that benefit us all and are central to maintaining a democratic society and the RoL.
CROSS-CULTURAL PERSPECTIVES-[55]
• A way to test common sense views through examining societies that are different from our own- how they criminalise and deal with criminal behaviour to enhance insights and awareness in criminological practices within our own society.
• Cultural relativity can serve as an antidote to the taken-for-grantedness, common-sensical cast of current crime definitions.
GEERTZ-(1983)-[56]
• Argues comparative study of law/justice should focus on “constructive/interpretative power- rooted in the collective resources of culture rather than in the separate capacities of
individuals” Law is constructive of social life, not just reflective of it. Law is in addition constitutive and formational.
HOGG-KNOWLEDGE AND POWER IN CRIMINAL JUSTICE-(1983)-[57]
• Routinely produced knowledge about crime/CJ agencies provides the raw materials for and forms the common-sense centre of criminal justice theories.
• To a considerable extent these understandings are produced/reproduced through practices of CJ agencies-hence need to deconstruct method of knowledge production to enhance knowledge of reforming CJ system
• Many existing behaviours that might be regarded as harmful are not visible as such or treated as criminal.
• LEE-INVENTING FEAR OF CRIME (2007)-[58]
• FEAR OF CRIME FEEDBACK LOOP-research into fear of crime-through crime victim surveys- produces criminological object fear of crime statistically, and discursively-used by law and order lobby and politicians to increase criminalisation.
• Assert that obsession with crime fear in modern day is to such a level that police force views crime fear reduction as important as crime reduction itself-can have unintended consequences and power effects of both social enquiry and political rationalities.
• MEDIA AND MORAL PANICS
• HALL-POLICING THE CRISIS (1978)-[112]-[113]
• Cohen defines moral panic as a shift of attention from the deviant act (i.e. mugging), treated in isolation to the relation between the deviant act and the reaction of the public and the control agencies to the act.
• POYNTING, NOBLE, TABAR AND COLLINS: Criminalising the Arab Other (2005)-[113]
• Argues the social imagining of the criminal in contemporary AUS increasingly involves the invocation of the Arab Other as a primary folk devil of our times: a figure which conflates Arabs, Muslims and Australians of Middle Eastern ancestry, and is grounded in an Orientalist pathology of crime, violence, barbarism and sexual rapaciousness”
• Emergence of recent years of a highly radicalised framing of current events, around crime and terrorism, on a local, national and international level, framing, according to YOUNG, acts to marginalise certain groups because crime images structured via bipolarisation-good and bad, victim/villain, right and wrong.
• Interrelated fears of increasing crime, cultural diversity, social cohesion, moral decay, failure of political authority and various state INS, globalisation, economic change and etc.
• DANGERS OF LOOSELY DEFINING MORAL PANICS- [114]
• UNJUSTIFIED justifications to excuse damaging nature of certain activities, OVER-
GENERALISATION which obscures the specific ways public sentiment is mobilised around particular folk-devils and ‘novel’ social problems are discovered, CONTRADICTORY replication of same analytical style warned against and DEGENERATION into media-based conspiracy theory.
ONE PUNCH LAWS CASE STUDY
Quilter-Mandatory minimum alcohol related violence sentencing-(2013)-[115]
