Wednesday, August 31, 2011

Cops, robbers and shock jocks: the media and criminal justice policy

Dr Alyce McGovern, Elaine Fishwick | The Conversation | 31 August 2011 

MEDIA & DEMOCRACY: Today, Alyce McGovern and Elaine Fishwick look at how the impact a tabloid campaign has had on the law as part of The Conversation’s week-long series on how the media influences the way our representatives develop policy.

When it comes to criminal justice policy, it can be easy to assume that the stories we see on the news, read in the papers, or listen to on the radio, are the drivers for change.

Whilst we could quite feasibly assume the link between media commentary and policy is clear cut, the reality of the policy making process is often more complex than superficial analyses suggest. This is no less the case when it comes to “law and order” style reforms.

The relationship between the media and governments, as explored previously, is a symbiotic one; politicians need the media as much as the media need them.

Whilst the media are often accused of running the agenda on a whole range of issues, politicians themselves are not averse to turning to the media to garner favour and to boost their profile.

Successful politicians are those that use the media well; successful media organisations are those that maintain their audiences by linking in to the politics of the day.

With the amount spent on public relations and media across government departments, it would be naïve to assume the media hold all the power in the relationship; more likely, it’s a tangled symbiotic policy, politics, entertainment, information relationship.

A range of factors and a range of choices need to come together then to provide the catalyst for policy action and reform; the media are only part of this process.

NSW Opposition aims for drive-by 'silver bullet'

ABC Online | 31 August 2011

A spate of drive-by shootings in Sydney has prompted the New South Wales Opposition to push for increased penalties. In the latest incident, on Monday night, two cars exchanged at least a dozen shots at an intersection in Greenacre, in the city's west. Two stray bullets hit the front of a house while a family was inside.

There have been at least 10 shooting incidents over the past few weeks alone. Police believe many of the incidents are linked.

Opposition Leader John Robertson says there is currently no specific offence for firing from a car, despite the high risk of someone being injured or killed.

"Unless an offender kills or seriously injures a person in a drive-by shooting, they're typically charged with the offence of fire at a dwelling," Mr Robertson said.

"This at the moment is only delivering sentences of four and half years, and for first time offenders the most likely penalty is a suspended sentence.

"We're suggesting that the Attorney-General ask the (NSW) Sentencing Council to increase the penalties for all drive-by shooting related offences and introduce a specific offence to deal with this crime category.

"What we're seeing is the people of western Sydney feeling unsafe. They have a right to feel safe in their homes."

Attorney-General Greg Smith has poured cold water on the call, though he says the Government is reviewing crime penalties.

"The Opposition, when they were in government, all they thought was to increase penalties, that would cure problems," Mr Smith said.

"It cured nothing. In fact it created greater recidivism, enormous increases in population in prisons.

"It's much cleverer to find what's causing this. This is what the police have got to do, they've got to get to the bottom of the war that's going on."

Meanwhile, police believe they have found the second car involved in Monday's shooting. An abandoned Audi was discovered with bullet holes in it at Sydenham yesterday afternoon. A stolen four-wheel drive thought to be the other vehicle used was found burnt out at Wiley Park soon after the shots were fired.

Judges troubled by 'killer point' in Wood case

Louise Hall | SMH | 31 August 2011

TWO judges hearing Gordon Wood's appeal against his murder conviction say key parts of the prosecution case ''trouble'' them, including the so-called ''killer point'' - that Wood knew where Caroline Byrne's body would be found.

In November 2008, Wood was convicted of murdering Ms Byrne by spear-throwing her from The Gap, a notorious suicide spot, on June 7, 1995.

Wood, who was jailed for at least 13 years, has maintained Ms Byrne, his girlfriend of three years, committed suicide.

In the Court of Criminal Appeal yesterday, the Crown prosecutor, Wendy Abraham, QC, said the couple's relationship was ''fracturing'' and Wood was concerned that Ms Byrne had knowledge of the serious illegal insider trading activity that Wood and his boss, the disgraced stockbroker Rene Rivkin, had allegedly engaged in over Offset Alpine shares.

Wood feared if their relationship ended, Ms Byrne may make the information public.

Justice Megan Latham said she found this motive, put forward by the Crown during the trial, troubling. ''I find the inference that she was killed because of some received knowledge she had of the inner workings of Rene Rivkin and his share trading to be based on almost no established evidence,'' Justice Latham said.

During the six-day hearing, Wood's barrister, Tim Game, SC, has criticised the scientific evidence of Associate Professor Rod Cross, a physicist who said Ms Byrne could not have run, jumped and landed head-first, some 11.8 metres out from the cliff face, and must have been thrown.

In her submissions yesterday, Ms Abraham said there was enough ''esoteric evidence'' to convict Wood, even if the expert evidence was dismissed.

''The 'killer point' was that the accused knew where the body was,'' Ms Abraham said.

The presiding judge, Peter McClellan, replied: ''The killer point troubles me greatly.'' He went on to say it would be ''pretty stupid'' for a murderer to lead police to his victim's body. Ms Abraham said that not only could Wood point out where Ms Byrne's body had landed, despite it being dark and the fact no one else could see anything, but he also knew what she was wearing and where to find her car.

''That doesn't make you a killer,'' Justice McClellan said.

He also questioned whether Wood and Ms Byrne were having anything more than the usual problems that occur in a relationship, as there was evidence of a ''strong attachment''.

Mr Game is asking for Wood's conviction to be quashed.

The hearing continues.

Tuesday, August 30, 2011

Plead Guilty and Get It Over With

What to do when your client assures you s/he is innocent, but nevertheless wants to plead guilty. Peter Hidden QC, Senior Public Defender explains. 

It is not uncommon for a client in a criminal case to tell counsel that he or she is innocent of the crime charged but, nevertheless, wishes to plead guilty. Some clients who are, in fact, guilty cannot bring themselves to confess to their legal representatives (particularly if the decision to plead guilty follows earlier protestations of innocence). Other clients, who may well be innocent, elect to plead guilty because their defence to the charge necessarily involves revealing other criminal conduct more serious than that charged or other behaviour, not itself criminal, of which they are deeply ashamed. 

Barristers who have been instructed by the Aboriginal Legal Service will be particularly familiar with the situation. Many older Aborigines, especially from rural areas, have a long history of appearing without representation in magistrates' courts, and their experience of the criminal justice system taught them that conviction follows arrest as the night follows the day. Even with legal representation, they cannot break the pattern of pleading guilty "and getting it over with", regardless of the merits of their case; and it is understandable that they have no stomach for a fight which they are convinced they cannot win.

O’Farrell’s ineffective graffiti legislation

David Shoebridge MLC | 25 August 2011

Legislation passing through the NSW Parliament that sends more children to court for graffiti will do nothing to reduce graffiti and is a step backwards, according to the Greens NSW and the submission of the Law Society of NSW.

This legislation will push more children into our courts system and is not supported by any evidence that it will reduce graffiti vandalism. The Greens NSW continue to advocate non-punitive community-based solutions, such as those instituted in the Balmain electorate by Leichhardt Council.

The legislation

The Graffiti Legislation Amendment Bill 2011 amends the Children (Community Service Orders) Act 1987 and the Crimes (Sentencing Procedure) Act 1999 to compel courts to impose community service orders for graffiti offences that require young people to remove graffiti (unless it is not reasonably practicable).

It also changes the Graffiti Control Act 2008 to allow courts to make orders concerning drivers’ licenses of those found guilty of committing graffiti offences of owning graffiti implements. These include increasing probationary periods by 6 months and limiting the number of demerits that can be accrued.

However the fundamental change in the Bill is that it compels young people to attend court. It does this by removing power from the police to deal with young offenders by way of an on the spot fine or youth justice conference instead of court proceedings.

Once passed police will have just two options, send the child to court or let them go.

It's not law Thomson should fear

George Williams | SMH | 30 August 2011

The political furore enveloping Craig Thomson has led to speculation that his disqualification from Parliament will bring down the Gillard government. However, it is unlikely that he will be disqualified. The damaging public debate will no doubt work to the political advantage of the opposition, but the law is unlikely to produce the outcome they desire.

The attempt to have Thomson removed from Parliament rests on section 44 of the constitution. It sets out five grounds for disqualification from Parliament of those who are not fit for office or have a conflict of interest.

A person cannot sit in the Federal Parliament if they: (1) have an ''allegiance, obedience, or adherence to a foreign power'', such as by being a citizen of another nation; (2) are ''attainted of treason'' or convicted of any offence punishable by imprisonment for one year or more; (3) are ''an undischarged bankrupt or insolvent''; (4) hold an ''office of profit under the Crown'', such as a public servant; or (5) have a financial interest in certain contracts with the Commonwealth.

Restorative justice after the riots?

Paul Carter-Bowman | The Guardian | 27 August 2011

As a former young offender I know rehabilitation in prisons is lacking. But it was a letter from my victim that made me change

After the crimes, the punishment. Sentences handed down barely a fortnight after the mass riots across England have included prison terms of up to four years, where those on the receiving end will spend around two entire years in prison, with the latter part of their terms served on probation within the community. Of the 1,474 who have already appeared before the courts, over 1,000 have been remanded to custody, which, to you and I, means spending time in prison.

But what can we expect our prisons to achieve with these rioters?

In 1999, at the age of 16, I phoned the police and handed myself in for a violent offence I had committed the previous evening. I did this thinking that the punishment I would receive would be no more or less than what I deserved, and believed that it would serve a purpose beyond simplistic retribution. I was aware that I had overstepped the boundaries set down by society, that I had become a dangerous individual. I expected to be taught a lesson and, perhaps naively, that I would emerge from my punishment a reformed character.

However, from the moment I entered Reading young offenders institution, it was clear that the practice of prison did not include reform or rehabilitation. There was no interest from either the regime or the guards who kept us. The point of prison was simply to keep me there. This would, theoretically at least, make sense if I was to never be released. But after pleading guilty to grievous bodily harm, the sentence I received was four and a half years (I went on to serve three).

Indeed, of the thousands of young people aged 15 to 21 whom I shared prisons with, not a single one received a sentence that would keep them out of society for their anticipated natural lives. A couple committed suicide, one was murdered by his cell-mate, and several will still to this day be awaiting parole from a life sentence, but everyone else has since been released back into the community. Ministry of Justice data confirms that 75% of young people reoffend within a year of being released from prison, and no doubt many of the others just evade capture.

Monday, August 29, 2011

What sort of A-G would George Brandis make?

Greg Barns | The Drum | 29 August 2011

George Brandis would no doubt like to be attorney-general, the first law officer of Australia, in the next Coalition government.

Senator Brandis is a barrister and a senior counsel, although the latter appointment was the subject of harsh criticism given it was awarded to him six years after he gave up active practice at the Queensland Bar.

But Senator Brandis's conduct in the Craig Thomson affair provides cause for concern about what sort of attorney-general he would be if the opportunity arose. Senator Brandis has pursed the ALP backbencher Thomson with a vigour that is disturbing on a number of levels.

Firstly, there are the telephone calls to ministers and police commissioners. Senator Brandis called New South Wales Attorney-General Greg Smith, a fellow Liberal, in early August. Smith says that Brandis was alerting him to a forthcoming media story which would reveal Brandis had asked the New South Wales DPP to look at the Thomson matter.

Then a couple of weeks later Brandis was on the phone again, this time to speak with New South Wales Police Minister Michael Gallacher to again alert him to the fact that Brandis would be sending a brief to the Police Commissioner Andrew Scipione. Gallacher himself alerted Scipione to look out for the Brandis brief.

Then there was Brandis's call to Australian Federal Police Commissioner Tony Negus last week. Brandis apparently wanted to clarify whether the AFP would be investigating the matter.

Even if we accept that Brandis did no more than inform his New South Wales colleagues of what he was up to, it was unwise of him to call them given the political stakes in the Thomson affair. Brandis did not need to call Smith and Gallacher, and in doing so he showed that he lacks judgment because he has allowed his political opponents to accuse him of lobbying to have the Thomson matter investigated.

Senator Brandis: better get a lawyer, son

Alex Steel | The Drum | 26 August 2011

NSW police might be investigating allegations of credit card misuse by Craig Thomson as a result of a letter from the Shadow Attorney General Senator Brandis, but certainly not as a result of what the letter thinks is the law. If Senator Brandis was a law student his letter would be a clear fail. This is deeply worrying given his hope to be the nation's top law officer.

On Wed the ABC reported that Brandis's letter stated:
"I submit there is a strong prima facie case that he has committed one or more offences against the Crimes Act… I draw your attention, in particular, to the offence of larceny; fraudulent appropriation; larceny by a clerk or servant; and fraud.
Senator Brandis said he considered the clearest offence to be fraud, "where a person who by any deception dishonestly obtains property belonging to another or obtains any financial advantage".

He said the maximum penalty for fraud was 10 years imprisonment.

Well, no. As any good law student can tell you in NSW stealing (larceny s117) only applies to the taking of physical property from the victim. It doesn't apply to electronic transfers of money or the creating of credit card debts. Neither to the acquisition of services, such as by prostitutes.

Fraudulent appropriation (s124) requires an indictment for larceny and only applies if a person has obtained physical property in a way that was not criminal but later dishonestly decides to keep it or ask for a reward. A good example is a person who finds lost property and decides later to keep it. Again, not applicable to credit card debts for services.

Larceny by clerk or servant (s156) is an aggravated from of larceny where the accused is an employee. No larceny, no fraudulent appropriation offence. It doesn't apply to credit card debts or services. So far no possible basis for a charge.

Brandis is on firmer ground when he alleges fraud may have occurred. But the offence he refers to is s192E, an offence that only came into force in 2010 - after the date of the alleged fraud. The correct offence - which had a maximum penalty of five years jail, not 10 - was s178BA which prohibited a person "by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage".

Sure it's pedantic to point this out. And there wouldn't be a problem if a member of the public made these mistakes. But for the Shadow Attorney-General to make a formal written allegation of crime to the Commissioner of Police and to allege a range of offences that could not possibly be the basis for a criminal charge is beyond sloppy.

It suggests that the Senator's staffers wrote this for him in a hurry in order to score a political point. They appear to not know the criminal law in NSW. It looks as though they looked at a copy of the Crimes Act circa 2011 and just jotted down the section titles that seemed to fit.

While none of this detracts from the gravity of the alleged misbehaviour by Craig Thomson, the Shadow Attorney General's reputation as a lawyer is diminished by this sloppy over-egging of the political attack.

Alex Steel is an Associate Professor in the Faculty of Law at the University of NSW.

Thursday, August 25, 2011

Ray Denning and lessons unlearnt in our justice system

Jack the Insider Blog | The Australian | 24 August 2011 

NSW Premier Barry O’Farrell deserves a round of applause. One of his election commitments was to examine the failures of the Bail Act (2007). In June of this year, the O’Farrell Government announced a judicial review into the Bail Act.

Retired NSW Supreme Court judge Hal Sperling QC will oversee the review which will report in November.

A promise made has been kept and Premier O’Farrell and his government gets a big tick.

The Bail Act was a flawed piece of legislation, driven largely by an appalling state Labor Government too eager to promote itself as being “tough on crime”.

Changes to the Bail Act created some very nasty unintended consequences. The policy wonks call it getting the settings wrong. But in human terms the costs are immeasurable or at least we won’t be able to measure them for some years to come.

Rates of youth detention skyrocketed in NSW; up by a third. Of those remanded in custody, only one third had committed subsequent offences. The overwhelming majority had been incarcerated awaiting trial for breaches of bail conditions, most commonly failing to comply with curfews. Many will await trial in custody for a year or more. Hopefully, the review will put a stop to this madness.

In Victoria, the Baillieu Government has run a “tough on crime” agenda. Ask the premier a question on transport, health or education and his brow quickly furrows but mention crime or God forbid, youth crime and he’ll go on for hours.

Now the Baillieu Government is moving forward with its plan to introduce mandatory minimum two year sentences for offenders between the age of 16 and 17 convicted of crimes involving violence.

It smacks of a stunt because sentencing data from the Children’s Court in Victoria shows that young violent offenders are not getting off easily. Secondly, a report from the Sentencing Advisory Council of Victoria reveals empirical evidence that longer sentences don’t act as a specific deterrent to offenders regardless of age.

In researching and creating the subjects and their histories for the documentary series, Tough Nuts on Foxtel’s CI Channel, one overwhelmingly common theme was the criminogenic effects of incarceration. In other words, that prisons and youth detention centres themselves are a major determinant of recidivism.

Our subjects were the worst of the worst: career criminals, mass murderers, drug dealers, people at the very top of the criminal hierarchy. They are the most notorious figures in Australian criminal history: Chris “Rentakill” Flannery, Dennis “Mr Death” Allen, Len “Mr Big” McPherson and John “The Magician” Regan.

Almost invariably they were products of a juvenile detention system where they were subjected to protracted physical and sexual abuse. Grafton Boys’ Home was the alma mater of any serious crook you could name from the 1970s and 80s; Stan “The Man” Smith, George Freeman, “Neddy” Smith and Len McPherson himself.

Tuesday, August 23, 2011

Unlawful arrests class action set for showdown

ABC Online | 23 August 2011

The New South Wales Government will ask a judge to throw out claims that police could have avoided hundreds of unlawful arrests.

The NSW Police Force is facing a class action in the state's Supreme Court by young people who claim they were wrongfully detained because of glitches in the police computer system.

The claimants are being represented in court by the Public Interest Advocacy Centre.

The centre's senior solicitor, Vavaa Mawuli, says there have been complaints about the problem for years.

"To the Police Commissioner, the NSW Attorney-General and senior staff members within NSW Police and the Attorney-General's office," Ms Mawuli said.

"That's been happening consistently for five years with no result so far."

But despite that the ABC understands the State Government will tomorrow ask the court to throw out the claim that arresting officers should have known of the problem.

The Police Force's own prosecutions unit also warned more than a year ago of an "enormous risk" of claims for damages.

Saturday, August 20, 2011

Riots sentencing: a sinister attempt to upend the judicial process

Vera Baird | The Guardian | 18 August 2011

When people are rightly angry it's the duty of the courts to punish more severely – but not to do as the government tells them

National revulsion and popular demand for punishment are dangerous things. They licensed the rule-bending that miscarried justice in the 80s, for the Birmingham Six and Guildford Four. In the miners' strike, once Margaret Thatcher had called the NUM "the enemy within", it was next to impossible to get them honestly policed or fairly tried.

How far from that danger re-emerging are we now when David Cameron asserts that everyone involved with rioting, however peripherally, should expect to go to jail; 100,000 sign a petition for those convicted to lose their benefits and councils intend to evict people who live in the same house as culprits, just for being their brother, sister or grandparent?

The Guardian reported this week that magistrates' clerks had "instructions" from a "senior clerk" to advise the bench to disregard all sentencing guidelines and jail every riot defendant. This is apparently a policy directive from the courts service, the government department that administers the courts. It is not from the higher judiciary, who speedily distanced themselves from it.

We are only aware of it because the chair of Camberwell Green magistrates, Novello Noades, blurted it out. She called it a "directive" but retracted the description later when presumably somebody reminded her that she is supposed to be an independent member of the judiciary.

Thursday, August 18, 2011

Draconian sentences, weak-kneed liberals and why thugs need to fear the law

Stephen Glover | The Daily Mail | 18 August 2011

A magistrate or judge handing down a sentence normally has two main considerations in mind.

One is the right punishment for the offender. The other is the deterrent effect on others.

We should not be at all surprised that, following last week's riots, much more emphasis than is usual is being placed on the deterrent effect.

A crime which in normal times would lead to a small prison sentence, or very possibly no sentence at all, is now likely to attract a swingeing penalty.

In other words, the context in which the crime was committed is rightly judged to be of crucial importance.

Two young men who posted messages on Facebook last week inciting people to riot in their respective home towns have both been sentenced to four years in prison by a judge at Chester Crown Court.

If either of them had done exactly the same thing six months ago, they would have barely been noticed. At most they would have received a rap on the knuckles from the police, and perhaps a caution.

As it is, Perry Sutcliffe-Keenan and Jordan Blackshaw have each received a punishment intended to deter which some people may think excessively harsh.

The justification for the sentence is that their call to violence, delivered at the time it was, supposedly caused some general panic in Warrington and Northwich.

Judge Elgan Edwards QC also said that 'considerable strain' was placed on hard-pressed police officers who were trying to control the riots.

Context is all-important: that is the message which critics of seemingly draconian sentences should take on board.

Last week saw the biggest outbreak of mindless criminality that this - and probably any other civilised - country has experienced in modern times.

Tough measures are needed in such unprecedented circumstances.

But it does not follow that every sentence that has been handed out in the past few days is proportionate. Most of us will have noticed punishments which, notwithstanding what I have said, do seem excessive.

Some police officers fended off gangs of youths intent on ransacking shops and retail centres, but are the sentences for looters appropriate?

A 23-year-old student with no previous convictions has been jailed for six months after he pleaded guilty for stealing six bottles of water said to be worth £3.50 as he was passing a looted supermarket in Brixton.

What a stupid idiot. But, especially in view of his good character and the contrition he showed to the police and magistrates, was this an appropriate punishment?

Kids in limbo: Australia's growing reliance on juvenile remand

Daniel Feher | The Drum | 17 August 2011


1. An uncertain period of awaiting a decision or resolution;

2. A state of oblivion;

3. The feeling experienced when held on remand.

Throughout Australian jurisdictions detention is considered an option of last resort in combating juvenile offending, with custodial sentences imposed only when other diversionary measures have failed.

Despite this principle, the number of youths remanded in detention has nearly tripled since 1981, with 60 per cent of young people in Australian detention centres held without sentencing. This figure points to a need for better youth justice programs to keep kids out of lockup, and underlines the greater problem of how to combat chronic juvenile offending by at-risk youths.

According to the recently released Doing Time – Time For Doing report, there are currently over 1,300 minors in detention around Australia, with over half identifying as Aboriginal or Torres Strait Islander. For many it is not their first time "in" and sadly, it may not be their last either. In 90 per cent of juvenile offence cases, the kids learn from their mistakes and exit the system, however it is the remaining 10 per cent who continue as chronic reoffenders that are the main cause for concern. These youths return to custody because of gaps and inconsistencies in post-release service provision that see them released back into the community without the adequate support they need to take control of their lives.

The media frequently leads us to believe that these so-called "hardened" youths are pathological criminals - villainous, defiant and perpetually "up to no good". However research spurred by these reports shows that the reality of these children's situations is far more complex, sad and unfortunate. Most have experienced some form of poverty, abuse or neglect, and many have been exposed to criminal behaviour and drug use from an early age, frequently through immediate family or close relatives. Suffering from a lack of care and positive role models, juvenile detainees often describe being forced to grow up quickly from an unreasonably early age and in some cases take care of younger siblings. In many cases this leads to a prematurely heightened sense of independence that causes a disconnect with the child's social and behavioural development and schooling. Aboriginal and Torres Strait Islander detainees in particular describe a loss of culture and identity, and subsequently a feeling of not belonging and alienation.

Over half of the young people in custody have mental health issues and more than two-thirds have a substance abuse problem that, in many cases, began before they were teenagers. Comorbidity in mental health and substance abuse problems is particularly prevalent, and the majority of detainees with a mental health problem will also have a history of drug use and self-medication. This is just a brief snapshot of the challenges this cohort of kids face in turning their lives around. It also highlights the appallingly negative progress that has been made in combating Aboriginal overrepresentation in the justice system since the Royal Commission into Aboriginal Deaths in Custody 20 years ago.

Compounding these challenges is the strain of incarceration. Results from a recent study by the Australian Institute of Criminology mirrored overseas findings that juvenile detention has no specific deterrent effect, and also pointed to other findings indicating a negative long-term impact on employment prospects. Led by veteran director of the NSW Bureau of Crime Statistics, Dr Don Weatherburn, the study cited a considerable body of research indicating that custodial environments are in themselves criminogenic, serving to harden young detainees and make them increasingly difficult to rehabilitate.

The financial costs of juvenile detention are also substantial, amounting to hundreds of millions of dollars spent each year for very little gain. Tasmania allocates the most on its juvenile inmates at $800 per child, per day, while Victoria is the thriftiest, at $408, with the other states and territories falling in between. Whichever figure you back, it remains a considerable sum to keep a youth in limbo for just one day.

Harsh riot sentences could cause appeals logjam, say rights groups

Owen Bowcott, Helen Carter and Shiv Malik | The Guardian | 17 August 2011 

Riot-related jail terms must be balanced against justice and proportionality, say campaigners

Civil liberties groups have warned that the court system will be clogged with appeals by people convicted of riot-related offences seeking to overturn lengthy terms of imprisonment.

"We know the courts are swamped with cases and handing down hurried and overly punitive sentences [that] will result in many criminal appeals which will act as a further drag on the system," said Andrew Neilson, director of campaigns for the Howard League for Penal Reform.

"While it is understandable that the courts have been asked to treat the public disturbances as an aggravating factor, this should be balanced against the key principle of criminal justice – that of proportionality."

The Sentencing Council for England and Wales, which produces guidelines for judges, has not met since the riots and insisted on Wednesday that there had been no discussions regarding the appropriate sentencing of rioters. The Ministry of Justice also denied asking the council to amend its guidance on future unrest.

Gillian Guy, a solicitor and member of the council and chief executive of the Citizens Advice Bureau, said that if magistrates had been told to disregard the guidelines, "then they must be satisfied that to apply the guidelines would be contrary to the interests of justice".

She added: "There's not one sentence for each crime. There has to be a range, because there are various factors that come into play. There's room within the range to take into account … other activity that's going on. We look for consistency and fairness and whether people understand what's going on."

Juvenile detention centre laws challenged

Geoff Chambers | The Daily Telegraph | August 18, 2011 

PROPOSED bail law changes which would keep kids out of packed juvenile detention centres are being challenged by the state's top prosecutor.

In a submission to the Law Reform Commission, the Office of the Director of Public Prosecutions disputed the need to repeal a section of the Bail Act, blamed for keeping too many youths behind bars.

Of the 17 submissions lodged with the commission as part of the Bail Act review, the ODPP was the highest-profile agency to resist a major overhaul.

Section 22A effectively limits people to one bail application. "No (it should not be repealed). Sensibly (section 22A) provides a court has power to decline to hear an application where it has heard and considered a previous application in the same case by the same accused unless there are new grounds," the submission said.

"The provision does not specify what 'grounds' means - leaving the accused with widest possible options should a change of circumstances occur." The DPP does not back a separate Bail Act provision for juveniles but has previously supported Bail Hostel services.

In its submission, Corrective Services argued for the bail changes on the basis it was struggling to manage an "increasing [adult] inmate population". "The diverse and difficult to manage mix of offenders is complicated by an increase in the number of inmates who are on remand," the department said.

The number of adult prisoners on remand has jumped 254 per cent since 1994 - coupled with a 55 per cent spike in the number of full-time inmates. The average cost of remanding inmates at the Metropolitan Remand and Reception Centre is $163.50 a day - higher than the daily cost for prisoners in mainstream jail. As at June, there were 405 juvenile offenders on remand.

"Corrective Services supports a number of previous submissions made to the 2010 consultation paper that children and young people should be considered separately to adults when bail is granted or refused," the department said.

Greens MP David Shoebridge said DPP Lloyd Babb had gone "out on a limb" by blocking changes to the Act. "In the few short years since 22A was put on the statute books the numbers on remand have ballooned, costing millions without a shred of evidence it has reduced crime," Mr Shoebridge said.

Mr Babb's position appears to be a rebuff to Attorney-General Greg Smith, who has campaigned for changes to the Bail Act to ease the stress on the juvenile justice system.

Retired supreme court judge Hal Sperling, who is leading the review, will report back by November.

Wednesday, August 17, 2011

Why CCTV has failed to deter criminals

Cory Doctorow | The Guardian | 17 August 2011 

As the recent UK riots showed, CCTV does nothing to prevent criminal behaviour

I've lost track of the number of people who've asked me to comment on David Cameron's insane plan to cripple Britain's internet in times of civil unrest by blocking Twitter and other services. In case you're wondering where I come down on it, well, let's say that it's not just a bad plan, it's also an ineffective one.

It's only been a week, after all, since Cameron's government concluded that the Digital Economy Act's web censorship plan wouldn't be implemented because downloaders would have no trouble getting around the blocks it would throw up. If people who want to download movies can evade Britain's censorwall, then so can people who want to organise riots. Duh.

But for me, the use of BlackBerrys in organising riots (if "organise" is the correct verb here) is just a sideshow. Though as a Canadian, I'm fascinated to see that our national technology success story, the businesslike BlackBerry, has now enduringly entered pop culture's lexicon as the tool of choice for disaffected and violent youth.

The real story for me is about surveillance, and not the mere use of CCTV footage to apprehend rioters after the fact. It's about the total failure of CCTV to deter people from committing crimes in the first place.

After all, that's how we were sold on CCTV – not mere forensics after the fact, but deterrence. And although study after study has concluded that CCTVs don't deter most crime (a famous San Francisco study showed that, at best, street crime shifted a few metres down the pavement when the CCTV went up), we've been told for years that we must all submit to being photographed all the time because it would keep the people around us from beating us, robbing us, burning our buildings and burglarising our homes.

A year before the Vancouver Winter Olympics, a reporter from a one of the local papers called me to ask whether I thought an aggressive plan to use CCTVs in the Gastown neighbourhood would help pacify the notorious high-crime heroin district. I said that the deterrence theory of CCTV relied on the idea that the deterred were making smart choices about their futures and would avoid crime if the consequences might catch up with them.

Then I recounted my last trip through Gastown, where the pavements were thronged with groaning and unconscious emaciated addicts, filthy and covered in weeping sores, and asked if those people could be reasonably characterised as "making smart choices about their future." I explained how my hire care had been broken into by a thief who'd left four perfect fingerprints on the passenger window, not caring whether the crime was associated with her or his biometrics forever.

Funnily enough, I was in Vancouver during the riots, which took place quite close to my home in London. I went through Gastown, which is utterly transformed into a pleasant shopping and university district. Simon Fraser University very carefully and cleverly slotted a new campus into the middle of Gastown, and hired only local people to work in it.

It was the very model of giving people a chance and a stake in their neighbourhood. And while there are still some sad and disfigured junkies here and there, you'd never know that Gastown was recently notorious as the most drug-blighted neighbourhood in the city that is the major port of ingress for heroin into the Americas.

I won't pretend to understand the forces that led my neighbours to take to the street and smash and burn and hurt each other. I don't think I know what "pure and simple criminality" is – presumably, it's some imperceptible pollen that drifts through society and alights on people, which is awfully convenient for government because "pure and simple" criminality has no cause and therefore no one to blame and nothing that can be done to prevent it.

But I do understand one thing: the deterrence theory of surveillance had no nexus with the motivations of the rioters. The theory of street crime as a rational act is bankrupt. Evidence-led CCTV deployment shows us where CCTV does work, and that's in situations where crimes are planned, not pulled off in the heat of the moment.

Parking garages, banks and jewelry stores, yes – but the idea that we can all be made to behave if only we are watched closely enough is bunkum. We behave ourselves because of our social contract, the collection of written and unwritten rules that bind us together by instilling us with internal surveillance in the form of conscience and aspiration. CCTVs everywhere are an invitation to walk away from the contract and our duty to one another, to become the lawlessness the CCTV is meant to prevent.

After the London riots, one thing is certain: anyone promoting CCTVs for deterrence is most likely selling something, probably CCTVs.

Monday, August 15, 2011

Dealing with the looters – a beak speaks

Larry Elliott | The Guardian | 11 August 2011

Magistrates aren't soft, but a spell behind bars won't solve the problems of young offenders I see.

The lawlessness seen on the streets of London and other English cities appears to have come as a shock to politicians. It will have come as no surprise to lay magistrates sitting in the youth courts. I know, because twice a month I take time off from charting the global financial crisis to sit as a justice of the peace.

In my experience, stretching back almost 20 years, the young offenders who come up before the beak fall into two broad categories. A minority turn up neatly dressed and with both parents in tow. They are still in full-time education, have the prospect of university and a decent career, and tend to be accused of relatively petty offences: a bit of drug-dealing perhaps. The parents hate being in court and the young offender knows it. They feel burning shame for the humiliation they are heaping on their mum and dad. It is often the first time they have appeared in court and they are scared.

In the other camp, there are those offenders who turn up late offering a litany of lame excuses. Before the case can begin, they have to be told to take their hands out of their pockets, turn off their mobile phones and stop chewing gum. Only rarely do they turn up with both parents: usually it is the mother, but quite often they are on their own. When magistrates retire to read the pre-sentence report, they can usually have a good guess at the contents: learning difficulties, excluded from full-time education, a history of physical and sometimes sexual abuse, living in a household dependent on benefits.

Magistrates are encouraged to engage with young offenders but it is hard going. The teenagers are trained by their defence lawyers to express remorse but are not entirely convincing when they say they feel sorry for their victims. There's not much sign that they respect the court, let alone fear it.

From the bench, what magistrates see is a raging bundle of id impulses, the desire for immediate gratification untempered by a sense of guilt and with only an ill-formed notion of right and wrong. The temptation to bang them up and throw away the key is strong, and magistrates will no doubt be encouraged to do just that over the coming weeks. It is, though, not the way the courts work, and a good thing too.

Despite what the politicians think, magistrates are not routinely soft. Formal sentencing guidelines mean that the courts can't make it up as they go along. For every offence, there is a starting point for the bench's deliberations and a range of possible sentences after magistrates have looked at any aggravating or mitigating factors, and at the offender's record and character. Magistrates can choose a sentence outside these nationally agreed parameters but they have to explain in open court why they are doing so. If they want to send someone to prison or order someone to do unpaid work, they first need to get a report from the probation service or, in the case of someone under 18, from a youth offending team.

It's absolutely right that this should be the case, since most magistrates are amateurs who rely on experience, common sense and professional back-up to come to what we hope is the right decision. It's a curious system, peculiarly British in its way, but it works.

Magistrates will not need the exhortation of politicians to get tough with the looters. In many cases, JPs will look at their guidelines and decide that the aggravating feature – the break down in public order – means their powers of sentence are insufficient. The maximum jail term they can hand out for a single offence is six months, reduced by up to a third if the offender pleads guilty. Only half a prison sentence is actually served behind bars: the rest under licence back in the community. Those caught red-handed with flat-screen TVs or designer trainers can expect to find themselves up before a judge in the crown court, with a harsher sentence as a result.

Yet we are kidding ourselves if we imagine that a spell under lock and key, even when necessary and richly deserved, solves deep-seated problems of parenting, schooling, poverty and abuse. There are times when magistrates feel a deep sense of sadness when they read a pre-sentence report in the privacy of their retiring room, which is why they see their task as both to punish and to rehabilitate. That seems to me the right approach. I have not heard of a better one.

Sexting punishment is unjust says magistrate

Nicole Brady | SMH | August 14 2011

Teenagers have been placed on the sex offenders' register for sexting offences.

A SENIOR Victorian magistrate who presided over a case in which a youth pleaded guilty to teenage sexting offences has condemned as ''so unjust'' the mandatory laws that meant the young man was registered as a sex offender.

The magistrate, who works in country Victoria, said the lack of judicial discretion in such cases meant severe consequences for young people who posed no threat to society and were often guilty of little more than naivety.

The magistrate, who spoke on condition of anonymity, said he had made the unusual decision to speak out because he was troubled by cases recently identified by Fairfax.

He presided over the case of the country youth, then aged 18, who was sent four uninvited text message pictures of girls, aged between 15 and 17 years, topless or in their underwear. Police found the pictures on his mobile phone and laptop and charged him with child pornography offences.

On legal advice the youth pleaded guilty and was sentenced to a one-year good behaviour bond without conviction. The magistrate refused the prosecutor's application for the young man to be placed on the sex offender register but police later realised his guilty plea resulted in mandatory registration for eight years. Magistrates have discretion for those aged under 18, but none for adults.

''These people shouldn't be regarded as sex offenders. It's going beyond the pale in relation to the imposition of long-term penalties which are not judicial penalties, they're not fines or community-based orders or even sex offender treatment programs. This is a limitation on what a person can and can't do for the next eight years of their life, for God's sake,'' the magistrate said.

The magistrate said that in the sexting cases coming before him in court the offenders ''have a minimal amount of culpability attached to them and a minimal amount of danger to any other person in the community. That's when it becomes so unjust.''

He called for magistrates and judges to be given discretion over who ought to be listed as a sex offender. ''We're the ones that see the material, we hear the pleas from the legal practitioners, we get to hear the prior convictions if there are any, we get to see the actual participants - the people who have been involved in this sort of activity,'' he said.

Chief Magistrate Ian Gray declined to comment. Police Minister Peter Ryan, who oversees the sex offender register, declined to be interviewed.

The country magistrate said he first learnt of the rise of adolescent sexting - people sending naked or revealing pictures of themselves via their mobile phones or the internet - about two years ago from a police officer who had been talking to local school children.

''This person said to me there was serious concern that sexting was in epidemic proportions. If you hadn't had pictures taken with no gear on you were part of the outer scene.''

Under Victorian law, it is an offence to possess or transmit child pornography, which is defined as images showing those under 18 ''engaging in sexual activity or depicted in an indecent sexual manner or context''. Anyone over 18 found guilty of possessing or transmitting child pornography is automatically listed as a sex offender.

The Sex Offender Registration Act was brought in by the Labor government in 2004, with bipartisan support, to enable police to monitor paedophiles and other serious sex offenders.

The magistrate said some of the adolescent sexting material he had seen ''certainly is grossly pornographic and some of it almost makes you feel unwell''.

But he said the only harm in cases where such pictures had been forwarded to other people was to the girl in the pictures. While the consequences were often traumatising for the girl, the males involved were not paedophiles or serious sex offenders.

''The parties are no danger to the community, they're no danger to kids, it's an exercise in many cases in naivety, not even quite stupidity, just naivety,'' he said.

England riots: justice grinds on as courts sit through the night

Tim Adams | The Observer | 14 August 2011

Some weeks are longer than others. In the early hours of Friday, at Horseferry Road magistrates court, around the corner from the Houses of Parliament, the riots of three or four nights ago felt like something that had happened in another time and place altogether.

One effect of our attention-deficit news culture is to collapse narratives into fast forward. In that respect, everyone in court number one had already lived through 24-hour cycles of tension, violence, anarchy, horror, cleanup, clampdown, fightback, soul-searching and recrimination. And that was all by Wednesday. The determined grind of retributive justice was about all that remained.

In parliament, some hours (or was it days?) earlier, the prime minister had made much of the symbolism of courts sitting through the night up and down the land "ensuring swift justice". The will for speed was there, but British justice has its own stubborn pace, and is more often a properly wearying business, the bureaucratic accretion of fact and referral, and rarely can it have felt more so than in court one at getting on for two o'clock in the morning.

The duty solicitors and court officials had clocked up 16 hours or more by then – but the charge sheets and supporting documentation kept coming, though rarely by now quite on cue or simultaneously. At midnight, the talk had been of a dozen new adult arrivals, plus a couple of juveniles, in the cells downstairs. "They are being bussed in from all over London," someone explained. The police wagons were queuing around the block.

On the press benches those deputed to chronicle the roll-call of the accused had adopted a glassy-eyed fascination with the process, scanning the lists of handlers of stolen goods for genuine firestarters, mostly in vain. Even the diehards in the public gallery, looking for answers or drama, were beginning to glance at watches and drift away. Most fatigued of all, though, seemed many of those in the dock, hearing the detail of what they were alleged to have done all that time ago. They stretched and blinked and did their best to concentrate, but a fair few seemed barely able to stay awake.

Much as the government might, on this occasion, have relished the idea of this admonitory process being broadcast more widely, Britain still thankfully doesn't do show trials. After the 24-hour apocalyptic exposure of the week's events on screens of all sizes, there was something reassuringly mundane and unmediated about these preliminary hearings. Television and the internet had magnified the riots, brought them into our homes and pockets, repeated their shocking extremes until they were ingrained, making the perpetrators at once faceless and global. The court had the effect of bringing the crimes back down to human scale. Separated out from what successive magistrates repeatedly emphasised as "the extremely serious context of unrest, looting and violence", most of the charges had a singular, and often banal, quality.

Sunday, August 14, 2011

How America criminalised poverty

Barbara Ehrenreich | The Guardian | 10 August 2011 

The viciousness of state officials to the poor and homeless is breathtaking, trapping them in a cycle of poverty

I completed the manuscript for Nickel and Dimed in a time of seemingly boundless prosperity. Technology innovators and venture capitalists were acquiring sudden fortunes, buying up McMansions like the ones I had cleaned in Maine and much larger. Even secretaries in some hi-tech firms were striking it rich with their stock options. There was loose talk about a permanent conquest of the business cycle, and a sassy new spirit infecting American capitalism. In San Francisco, a billboard for an e-trading firm proclaimed, "Make love not war," and then – down at the bottom – "Screw it, just make money."

When Nickel and Dimed was published in May 2001, cracks were appearing in the dot-com bubble and the stock market had begun to falter, but the book still evidently came as a surprise, even a revelation, to many. Again and again, in that first year or two after publication, people came up to me and opened with the words, "I never thought …" or "I hadn't realised …"

To my own amazement, Nickel and Dimed quickly ascended to the bestseller list and began winning awards. Criticisms, too, have accumulated over the years. But for the most part, the book has been far better received than I could have imagined it would be, with an impact extending well into the more comfortable classes. A Florida woman wrote to tell me that, before reading it, she'd always been annoyed at the poor for what she saw as their self-inflicted obesity. Now she understood that a healthy diet wasn't always an option. And if I had a quarter for every person who's told me he or she now tipped more generously, I would be able to start my own foundation.

Even more gratifying to me, the book has been widely read among low-wage workers. In the last few years, hundreds of people have written to tell me their stories: the mother of a newborn infant whose electricity had just been turned off, the woman who had just been given a diagnosis of cancer and has no health insurance, the newly homeless man who writes from a library computer.

At the time I wrote Nickel and Dimed, I wasn't sure how many people it directly applied to – only that the official definition of poverty was way off the mark, since it defined an individual earning $7 an hour, as I did on average, as well out of poverty. But three months after the book was published, the Economic Policy Institute in Washington DC issued a report entitled "Hardships in America: The Real Story of Working Families", which found an astounding 29% of American families living in what could be more reasonably defined as poverty, meaning that they earned less than a barebones budget covering housing, child care, health care, food, transportation, and taxes – though not, it should be noted, any entertainment, meals out, cable TV, Internet service, vacations, or holiday gifts. Twenty-nine percent is a minority, but not a reassuringly small one, and other studies in the early 2000s came up with similar figures.

The big question, 10 years later, is whether things have improved or worsened for those in the bottom third of the income distribution, the people who clean hotel rooms, work in warehouses, wash dishes in restaurants, care for the very young and very old, and keep the shelves stocked in our stores. The short answer is that things have gotten much worse, especially since the economic downturn that began in 2008.

Wednesday, August 10, 2011

David Cameron's 2006 'hoodie' speech in full

BBC News | 10 July 2006

Here is the text of Conservative leader David Cameron's speech to the Centre for Social Justice founded by Iain Duncan Smith.

"It's always a pleasure to speak to the CSJ.

On my first day as leader I went with Iain to the East Side Young Leaders Academy - an inspirational project working with black boys at risk of crime.

And the first of the policy groups I set up was Iain's, looking at all the full range of social justice issues.

For the Conservative Party I'm leading, social justice is a vital issue.

The reason is simple: the degree of social injustice in our country.

One of the worst aspects of social injustice that people face is the fear and suffering caused by crime and disorder.

In many communities, it's doing more to wreck the sense of general well-being than just about anything else.

Everywhere I go, it seems to be the same story.

People frightened to go out for a drink on a Friday or Saturday night because town centres turn into war zones.

Neighbourhoods wrecked by vandalism, graffiti and a less tangible, but perhaps more damaging, sense of menace in the air.

The complaints are identical.

Young people are out of control.

There's nothing for them to do.

Why can't their parents do their job properly?

Today I want to talk about how we solve these problems for the long term.

Too often, the debate is about short-term solutions: ASBOs, curfews and criminal justice.

Of course, we need these things to protect the public from anti-social behaviour today.

But my aim is a society where we need them less and less.

The long-term answer to anti-social behaviour is a pro-social society where we really do get to grips with the causes of crime.

Saturday, August 6, 2011

How America Lost the War on Drugs

Ben Wallace-Wells | Rolling Stone | 24 March 2011

After thirty-five years and $500 billion, drugs are as cheap and plentiful as ever. An anatomy of a failure.

1. After Pablo

On the day of his death, December 2nd, 1993, the Colombian billionaire drug kingpin Pablo Escobar was on the run and living in a small, tiled-roof house in a middle-class neighborhood of Medellín, close to the soccer stadium. He died, theatrically, ridiculously, gunned down by a Colombian police manhunt squad while he tried to flee across the barrio's rooftops, a fat, bearded man who had kicked off his flip-flops to try to outrun the bullets. The first thing the American drug agents who arrived on the scene wanted to do was to make sure that the corpse was actually Escobar's. The second thing was to check his house.

The last time Escobar had hastily fled one of his residences — la Catedral, the luxurious private prison he built for himself to avoid extradition to the United States — he had left behind bizarre, enchanting detritus, the raw stuff of what would become his own myth: the photos of himself dressed up as a Capone-era gangster with a Tommy gun, the odd collection of novels ranging from Graham Greene to the Austrian modernist Stefan Zweig. Agents from the Drug Enforcement Administration, arriving after the kingpin had fled, found neat shelves lined with loose-leaf binders, carefully organized by content. They were, says John Coleman, then the DEA's assistant administrator for operations, "filled with DEA reports" — internal documents that laid out, in extraordinary detail, the agency's repeated attempts to capture Escobar.

"He had shelves and shelves and shelves of these things," Coleman tells me. "It was stunning. A lot of the informants we had, he'd figured out who they were. All the agents we had chasing him — who we trusted in the Colombian police — it was right there. He knew so much more about what we were doing than we knew about what he was doing."

Coleman and other agents began to work deductively, backward. "We had always wondered why his guys, when we caught them, would always go to trial and risk lots of jail time, even when they would have saved themselves a lot of time if they'd just plead guilty," he says. "What we realized when we saw those binders was that they were doing a job. Their job was to stay on trial and have their lawyers use discovery to get all the information on DEA operations they could. Then they'd send copies back to Medellín, and Escobar would put it all together and figure out who we had tracking him."

The loose-leaf binders crammed in Escobar's office on the ground floor gave Coleman and his agents a sense of triumph: The whole mysterious drug trade had an organization, a structure and a brain, and they'd just removed it. In the thrill of the moment, clinking champagne glasses with officials from the Colombian police and taking congratulatory calls from Washington, the agents in Medellín believed the War on Drugs could finally be won. "We had an endgame," Coleman says. "We were literally making the greatest plans."

At the headquarters of the Office of National Drug Control Policy in Washington, staffers tacked up a poster with photographs of sixteen of its most wanted men, cartel leaders from across the Andes. Solemnly, ceremoniously, a staffer took a red magic marker and drew an X over Escobar's portrait. "We felt like it was one down, fifteen to go," recalls John Carnevale, the longtime budget director of the drug-control office. "There was this feeling that if we got all sixteen, it's not like the whole thing would be over, but that was a big part of how we would go about winning the War on Drugs."

Man by man, sixteen red X's eventually went up over the faces of the cartel leaders: killed. extradited. killed. José Santacruz Londoño, a leading drug trafficker, was gunned down by Colombian police in a shootout. The Rodríguez Orejuela brothers, the heads of the Cali cartel, were extradited after they got greedy and tried to keep running their organization from prison. Some U.S. drug warriors believed that the busts were largely public-relations events, a showy way for the Colombian government to look tough on the drug trade, but most were less cynical. The crack epidemic was over. Drug-related murders were in decline. Winning the War on Drugs didn't seem such a quixotic and open-ended mission, like the War on Poverty, but rather something tangible, a fat guy with a big organization and binders full of internal DEA reports, sixteen faces on a poster, a piñata you could reach out and smack. Richard Cañas, a veteran DEA official who headed counternarcotics efforts on the National Security Council under both George H.W. Bush and Bill Clinton, can still recall the euphoria of those days. "We were moving," he says, "from success to success."

This is the story of how that momentary success turned into one of the most sustained and costly defeats the United States has ever suffered. It is the story of how the most powerful country on Earth, sensing a piñata, swung to hit it and missed.

Tuesday, August 2, 2011

Lawyers challenge police alcohol ban powers

Peter Munro | The Age | 31 July 2011

POLICE powers to ban people from licensed venues could be challenged in the Supreme Court after a young woman was excluded for a year from every pub, bottle shop and licensed restaurant in her home town despite not being found guilty of any crime.

The 21-year-old was banned under a ''liquor accord'' between police and licensees from supermarket liquor outlets and licensed pizza shops, cafes and clubs in Swan Hill after being charged with apparently unrelated drugs offences. Similar bans under Victoria's liquor laws are limited to cases of alcohol-related violence or disorder.

Police appeared to be overstepping their powers, said Victorian Legal Aid's senior public defender, Saul Holt. ''She will be prevented for the next 12 months from attending 21st birthday parties of friends at licensed venues, prevented from having meals out with family at licensed venues and prevented from going to the supermarket,'' he said.

''A significant part of her ability to participate in community life has been stopped by this banning notice.''

Legal Aid was considering challenging the banning notice in the Supreme Court because there was no evidence that suggested their client was involved in any offence related to licensed premises, he said.

There are 89 liquor licence accords in Victoria with banning powers to combat alcohol-related crime. But the Swan Hill and District Liquor Industry Accord permits bans in connection with any alleged offence or breach of council by-laws. Bans are issued by police or licensees without court oversight. The only right of appeal is to a senior police officer.

''You could be banned from your local pub or club for littering outside a licensed premises, based on the way this particular accord is drafted,'' Mr Holt said.

''We don't have any difficulty per se with the power to do it in limited circumstances, such as when there is a very serious violent incident at a licensed premises. But it's the breadth and lack of oversight of these orders that concerns us.''

Modern prescription for mental illness: go directly to jail

Richard Ackland | SMH | July 29, 2011

"Most are ill people locked in a system that can't provide proper treatment."

A comfortably-off, middle-class woman from a nice suburb suddenly finds herself at the Silverwater metropolitan remand and reception centre. She's been charged with a serious driving offence and is awaiting trial.

The reception centre is a madhouse. It's so crowded people are swinging off the rafters. There are three or four people to a small cell. Our middle-class inmate shares with two others.

There's an Aboriginal woman clearly suffering a dreadful mental trauma, who spends the entire night screaming and bashing her head against the wall. There is blood everywhere.

The lady on the driving charge repeatedly calls the guard for something to be done, only to be told when someone in authority finally gets around to sticking their head in (twice in 12 hours), ''don't worry about it''.

The guards would have seen this sort of scene innumerable times. Someone might die, but the resources can't cope and the system is choked with mentally ill prisoners.

A group of us who attended the most recent forum of the Crime and Justice Reform Committee heard this story from Kat Armstrong, an articulate former prisoner who nowadays works for the Women in Prison Advocacy Network.

Former District Court judge Chris Geraghty, who chaired the lunchtime session of the CJRC, said he quite frequently had to sentence mentally damaged people to jail who said their heads were filled with voices. Sending these people to prison is unlikely to improve their capacity to function. It also compounds the difficulties of daily life for other prisoners and prison officers.