Williams v Director of Public Prosecutions (NSW) [2011] NSWSC 1085

In the matter of Williams v DPP, the Supreme Court of New South Wales this week handed down a hugely important decision clarifiying the arrest power of Police under s.99 of the Law Enforcement (Power and Responsibilities) Act ("LEPRA").

The Court was required to decide:

(1) whether the power of an officer to arrest without warrant on the basis of reasonable suspicion  - the power found in s.99(2) - is constrained by s.99(3), which states that arrest must be not be carried out unless Police suspect it is necessary to achieve one of the stated purposes in the subsection, examples of which include to ensure the attendance of the person at Court; and

(2) where an arrest does not comply with s.99(3) whether the arresting officer was acting "in the execution of duty".

Prior to LEPRA, an arrest could be challenged as being 'improper'-  rather than 'unlawful' - on the basis that arrest was unnecessary, for example, where the offence was trivial, where Police knew the person's name and address or had established their identity, and there was no concern they either would not attend Court, or continue to commit the offence. 

The principle relied upon is that arrest is a measure of last resort, and that, where appropriate, less intrusive mechanisms, such as the issue of a summons (or later Court Attendance Notice), should be employed to commence proceedings.

In Fleet v District Court of NSW and DPP v Carr the Supreme Court established clear authority for these propositions, which also appear in the NSW Police Handbook. However, the only available sanction against an improper arrest is the exclusion of evidence improperly obtained, via s.138 Evidence Act (NSW). 

Rather than 'real' evidence, the evidence sought to be excluded by defence practitioners following an improper arrest very often fell into the category of evidence concerning the commission of further offences such as resist arrest, assault police, and intimidate police. 

In order to succeed, defence would need to overcome the argument that even where Police make an improper arrest they generally do not set out to "obtain" evidence of subsequent offences committed against them

In Carr, Smart AJ applied a 'but-for' test to determine the issue: that is, if the Police had not improperly arrested the person, there would have been no subsequent offences committed against Police while the person was under arrest. His Honour also made clear that such a test should be confined only to the facts of that case. 

Following Carr, a series of further decisions by the Supreme Court, most notable among them DPP v Coe and DPP v AM, developed s.138(3) such that evidence of further offences might be said to have been "obtained" by an improper arrest where the commission of such offences either had been intended by the Police or assessed by the Court as having been objectively likely to have followed the improper arrest. 

Cases fought on this basis were won only because the evidence concerning the further offences was excluded, leaving no evidence on which prosecutions could rely.

An easier path to defeat the same sort of charges involving Police is found in the argument that Police were not acting "in the execution of duty" - an essential element of proof for each of the resist, assault and intimidate charges. However, to succeed in this argument, defence must establish that Police were acting "unlawfully" rather than merely "improperly". Provided an arrest was justified by reasonable suspicion, it would not be found to be "unlawful" simply by reason of it being unnecessary.

After the introduction of LEPRA, it has not been clear what consequences will flow from a failure to comply with s.99(3). Although the sub-section says police "must not arrest .. unless", a submission that failure to comply with the sub-section was unlawful - meaning Police were not acting in the execution of their duty - has been met with an inconsistent response from the bench.

However, with the decision of Williams it is now clear that an arrest found to be unnecessary with reference to the s.99(3) criteria may not only be improper in the Carr sense, but will also constitute an illegality and defeat a charge where "execution of duty" is an element.

Congratulations go to the Aboriginal Legal Service for carting the case from Kyogle Local Court to the Supreme Court. Just as they did with Carr, the ALS continue to push the boundaries of the law in this area. 

Mass detention of persons

From Schurr, Criminal Procedure NSW

[6.1620] Mass detention of persons

Sometimes search warrants are executed on clubs or hotels, where hundreds of people may be present. The requirement for reasonable suspicion applies in those situations. The probability is also that many charges for hindering will be laid and many allegations of false imprisonment made. The NSW Ombudsman in his 1986 report on the execution of a search warrant on "Club 80", a gay nightclub in Oxford Street, Sydney, found that between 150 and 300 people were detained in the club. Police said that patrons remained in the premises to assist police, and the complainants said that they were forcibly detained until they supplied their name and address. The Ombudsman found that this behaviour was "unreasonable" in that it breached the Commissioner's Instructions that police had no power to detain and question prior to arrest. The Ombudsman found that the police suggestion that the patrons voluntarily waited two or three hours to give their names and address, particularly at a time when homosexual activities were still illegal in New South Wales, was ludicrous.

Legal aid chief quits amid demand for change

Geesche Jacobsen | SMH | 17 September 2011

THE chief executive of the NSW Legal Aid Commission, Alan Kirkland, has left his position days after a Herald report into a staff survey showing high levels of stress.

It is understood Mr Kirkland, 39, was called into a meeting with the Attorney-General, Greg Smith, on Wednesday and he announced his departure to staff and the board yesterday.

In a message to staff he said he was sorry to be leaving: ''This is the best job I've ever had - and I continue to think that.''

The survey into staff wellbeing, highlighting issues which had already emerged in two previous surveys in 2008 and 2009, was believed to have been just one factor in his demise.

Another was a controversial restructure of Legal Aid NSW, which led to disquiet among its board. A government review of this restructure is believed to have been critical of its objectives and implementation.

Under the restructure, the commission has increasingly focused on policy work, while solicitors appearing in courts reported stress, sleeplessness and time pressures.

Mr Smith said in a statement yesterday: ''Legal Aid NSW's principal function should be to provide people involved in criminal law and family law proceedings with access to affordable representation. In future, the Attorney-General would like to see Legal Aid NSW focusing on supporting its clients and staff to ensure its functions are delivered appropriately.''

It is believed the government will appoint a temporary chief executive from within the department of Attorney-General and Justice, and hopes to fill the position before the end of the year.

Mr Kirkland, was a former director of the NSW Council of Social Services, worked for the Australian Law Reform Commission and was a co-convener of the Gay and Lesbian Rights Lobby. He is a long-standing Labor supporter, but his politics are understood to have played little or no part in his departure.

Staff were understood to have been shocked by Mr Kirkland's departure. A statement issued on behalf of senior management praised his work for increasing the agency's budget and his commitment to young people, Aborigines and the disadvantaged.

''Alan is an exceptional manager who understood the business of Legal Aid NSW … and he will be greatly missed,'' the statement said.

Legal Aid lawyers speak out about stress

Brendan Trembath | The World Today | 12 September 2011

Listen to audio here

ELEANOR HALL: Lawyers who work for Legal Aid in New South Wales say they're insulted that their chief executive denies the organisation has a major problem with its staff's mental health and working conditions.

Alan Kirkland spoke to The World Today last week about a health survey which found that many legal aid workers felt stressed and overworked.

He said Legal Aid lawyers weren't as badly off as some other lawyers.

Brendan Trembath reports.

BRENDAN TREMBATH: Legal Aid lawyers represent the disadvantaged in all sorts of cases from the local courts to the High Court.

Last week the Legal Aid New South Wales chief executive Alan Kirkland tried to make the most of a recent staff survey which exposed high levels of stress. Staff also complained about sleeplessness and overwork.

ALAN KIRKLAND: I think that we knew that our staff were likely to report high levels of stress. One of the interesting things about it is that they are possibly not reporting such high levels of mental health issues as other lawyers because there has been a lot of work in the last few years around rates of depression, anxiety and even suicide among the legal profession.

And one thing the study suggests is perhaps Legal Aid lawyers are doing better than some other lawyers but despite that, they still face some very significant challenges in their work and we are keen to increase the support that we provide to them.

BRENDAN TREMBATH: Mr Kirkland's comments have caused more stress for his staff. One Legal Aid lawyer had this to say in a statement sent to The World Today.

EXTRACT FROM STATEMENT BY A LEGAL AID LAWYER: It is ludicrous for our CEO to claim there isn't really a problem with legal aid lawyer's mental health or our poor working conditions.

BRENDAN TREMBATH: Legal aid lawyers are technically public servants and are not allowed to speak to the media. They risk their careers when they break that rule.

EXTRACT FROM STATEMENT BY A LEGAL AID LAWYER: The Legal Aid solicitors are outraged and insulted that their CEO has trivialised in his interview with you the results of the mental health survey and put down his own staff as not really having a problem. This is despite the same issues being raised in 2008 and 2009.

BRENDAN TREMBATH: The lawyer says this is insulting from a CEO who is not a practising lawyer.

NSW Legal Aid chief stood down

Marianna Pappadakis | The Leader | 16 September 2011 

NSW Legal Aid chief executive officer Alan Kirkland has been stood down.

A spokesman for NSW Attorney General Greg Smith confirmed Mr Kirkland's dismissal but did not say on what grounds.

''Legal Aid NSW’s principal function should be to provide people involved in criminal law and family law proceedings with access to affordable representation,'' the spokesman said.

''In future, the attorney general would like to see the commission focusing on supporting its clients and staff to ensure its functions are delivered appropriately.''

Mr Kirkland has been chief executive officer of NSW Legal Aid since July 2008 and was appointed by NSW Attorney General John Hatzistergos under an annual performance agreement until July 2013.

He was previously executive director of the Australian Law Reform Commission from 2004 to 2008.

Before this he was a director of community access with the NSW Department of Ageing, Disability and Home Care and a director of the NSW Council of Social Service as well as a member on the boards of non-government organisations.

He was also a member of the Commonwealth Social Security Appeals Tribunal (Cth) and NSW Administrative Decisions Tribunal.

He has been described previously by media as a long-standing ALP supporter.

He sought preselection as a Labor councillor to South Sydney Council in 1999.

He was also a co-convener of the NSW Gay and Lesbian Rights Lobby.

A NSW Legal Aid spokeswoman did not comment but provided a statement of appreciation of Mr Kirkland's work.

She said Mr Kirkland declined to comment.

The statement by NSW Legal Aid said deputy chief executive officer Patricia O'Farrell and executive directors extended their "warm thanks and sincere appreciation to Mr Kirkland".

The board said it was ''shocked'' by Mr Kirkland's departure and NSW Legal Aid would continue to focus on delivering the highest quality services to our clients.

''Over the last three years we have been fortunate to be led by Alan Kirkland through a period of successful growth and change,'' the statement said.

The statement said legal services for disadvantaged people across NSW increased ''significantly'' during Mr Kirkland's time as CEO of legal services.

''Services to rural and regional clients, in particular, have expanded,'' it said.

''Under Alan's insightful and distinguished three year stewardship the annual operating budget for Legal Aid NSW increased by 17 per cent.

''Alan will be remembered for developing rapid, innovative legal responses to meet emerging legal needs. He also worked hard to bring all segments of the broader legal assistance sector together to deliver better services for clients.

''Alan is an exceptional manager who understood the business of Legal Aid NSW.

''Above all Alan is approachable, considered, transparent and efficient. We respect the role that he has played as CEO of Legal Aid NSW and he will be greatly missed.''

The statement said Mr Kirkland led legal aid commissions nationally in 2010 in negotiating a new national partnership agreement on legal assistance services with the Commonwealth which delivered a 20 per cent increase to the base Commonwealth funding of NSW Legal Aid NSW, the first funding increase in more than a decade.

It said Mr Kirkland's contributions to the negotiations were recognised this year when he was appointed chair of the National Legal Assistance Advisory Body on issues affecting the legal assistance system.

''He commissioned a detailed analysis of trends in NSW Legal Aid criminal law expenditure in order to better understand the cost drivers in crime and position us to meet increases in demand for our services.

''He worked effectively to implement the recommendations of the NSW Trial Efficiency Working Group aimed at providing experienced and skilled counsel to run complex legally aided trials.

''Alan is a passionate advocate for increased legal services for Aboriginal people and people in rural and regional areas of NSW.

''Alan argued strongly, within government, for bail reform and was committed to finding innovative ways to help our most marginalised clients, particularly children in out of home care and homeless people. He was heavily involved in efforts to reduce the unacceptably high rates of incarceration of young people in juvenile detention centres.''

As NSW Legal Assistance Forum chairman, he was ''committed to building a consensus amongst non government agencies to deliver the best possible services to people needing legal help''.

Lionel Murphy Lecture - 'Vigilance against injustice in the justice system'

The Hon. Robert McClelland | Australian National University, Canberra | 7 September 2011

Acknowledgments

Good Evening, and thanks Professor Dietze for your very kind introduction. First, I would like to acknowledge the traditional custodians on whose land we are meeting today – the Ngunnawal people - whose cultures we honour as among the oldest continuing cultures in human history. And I would like to pay my respects to Elders past and present.

I’d also like to recognise our hosts this evening – the ANU College of Law and in particular Associate Dean Fiona Wheeler and Head of School Stephen Bottomley; Members of Lionel Murphy’s family;
Trustees of the Lionel Murphy Foundation; Dr Kristine Klugman – President Civil Liberties Australia and Mr Bill Rowlings – CEO Civil Liberties Australia; Dr Helen Watchirs – ACT Human Rights and Discrimination Commissioner; Mr Daryl Dellora; Ladies and gentlemen.

Introduction

It’s a great honour to have been asked to speak this evening. I have entitled this year’s address as Lionel Murphy’s Legacy – Vigilance against Injustice in the Justice System.

And I wish to speak to the national shame that is the over-representation of Indigenous Australians in the criminal justice system.

And to the practical steps the Commonwealth and the States and Territories must take to right this enduring wrong.

This problem has been brought to the public’s attention this year particularly because of the 20th Anniversary of the Royal Commission into Aboriginal Deaths in Custody and the release in June of the House of Representatives Inquiry ReportDoing Time – Time for Doing: Indigenous Youth in the Criminal Justice System.

Lionel Murphy

But before turning to that I’d first like to pay a brief tribute to Lionel Murphy, whose memory we are here to honour tonight - a great Labor leader, an accomplished Attorney-General and an inspiring High Court Justice.

And in doing so, I would like to speak briefly of a judgment he wrote as a judge of the High Court - Neal v R.1

The case was that of an Aboriginal man, Mr Neal.

Mr. Neal was Council Chairman in Yarrabah, a community in Northern Queensland. This community had a deep sense of grievance about the paternalistic treatment by white authorities, including the management of the store which was reportedly selling rotten meat. Mr Neal had argued with the store manager about the management of the reserve. When the discussion reached an impasse, Mr. Neal swore at the store manager and spat at him.

For this, Mr Neal was sentenced to two months hard labour. On appeal to the Queensland Supreme Court, Mr Neal’s sentence was increased to 6 months.

Mr Neal then appealed to the High Court where Lionel Murphy presided.

The year was 1982, and Murphy noted in his judgment the appallingly high rates of Indigenous incarceration at that time – that although Indigenous Australians made up only 1 per cent of the total population they made up nearly 30 per cent of the prison population.

In addressing the question of Mr Neal’s relatively harsh sentence for what was a seemingly trivial offence, he said:

“That Mr. Neal was an ‘agitator’ or stirrer in the magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. …Mr. Neal is entitled to be an agitator.”2

Needless to say, Mr Neal’s appeal was allowed.

So I’d like to draw some inspiration from Lionel Murphy tonight as I speak to the challenges that we currently face in terms of the overrepresentation of Indigenous Australians in the justice system - an injustice which remains nearly 30 years after Neal v R.

Prior to the recent Commonwealth Law Minister’s Meeting that brought together Attorneys General and Justice Ministers from across the Commonwealth, I had cause to reflect on the origins of European settlement in Australia. The British Transportation System arose from an attempt by England’s privileged classes to remove a so called “criminal class”.

Transportation included punishment for lesser offences that were more often than not the effect of extreme social disadvantage. Well that’s how Europeans originally came to Australia but as a law and order measure this policy was unsuccessful. Crime wasn’t addressed until chronic social disadvantage was addressed.

Today, Attorneys-General and Justice Ministers across Australia need to ask ourselves if we making the same mistakes in respect to the issue of the incarceration of Indigenous Australians.

The figures speak for themselves.

Judge calls for sex trials rethink

Farah Farouque | The Age | September 8, 2011

SOME accused sex offenders should be dealt with outside the traditional courts in a system similar to South Africa's truth and reconciliation commissions where they meet and hear from victims, says one of Victoria's most senior judges.

Justice Marcia Neave, of the Court of Appeal, told The Age she was deeply concerned that conviction rates for sexual assaults remained ''very, very low'' and guilty pleas had plunged, despite law reforms in the past decade. Victoria's criminal justice system was not working for victims of sex offences, despite changes to court rules and systems to accommodate their needs, she said.

It was time for policymakers to consider a radical alternative to traditional courts by diverting some sex offenders, including alleged rapists, into a system where they made admissions and met their victims in ''conference'' settings. The victims, or a spokesperson for them, would explain how their lives had been affected and discuss reparations - commonly the offender enrolling in a treatment program. No conviction would be recorded.

Both victim and offender would consent to participate under the plan, echoing principles used in the truth and reconciliation commission system that applied after the end of apartheid in South Africa.

As a first step, the idea should be tested in Victoria for carefully selected juvenile sex offenders, including those accused of rape, and perhaps also some adults accused of sex crimes that were decades old and hard to prove beyond reasonable doubt in a criminal court.

''If you can use truth and reconciliation in the context of the apartheid regime in South Africa, in the context of the terrible things that happened in East Timor with the militias, then you might be able to use it in [this sexual offence] context,'' the judge said.

Justice Neave plans to raise the idea, which she conceded was controversial and might be a hard-sell politically in Spring Street, in a paper she will give at an Australasian Institute of Judicial Administration conference in Sydney today.

The paper cites statistics including that fewer than 20 per cent of sexual assault victims report the offences to police. In Victoria, from 2004-05 to 2008-09 a conviction was recorded in about 50 per cent of sex cases that went to trial in the County Court. By 2009-10, the conviction rate had fallen to 38 per cent.

''It must be accepted that some allegations of sexual assault may be false or mistaken … [but] the vast majority of true allegations do not result in any redress through the criminal justice system,'' the paper says.

Before becoming a judge, Justice Neave chaired the Victorian Law Reform Commission, which recommended major changes to court rules and systems for hearing sex assault cases. While acknowledging difficulty persuading the public and politicians her latest proposal was the right path, it was ''not impossible to persuade people that this might be a better outcome'', she said.

''If we are talking about a 17-year-old boy who offended against a neighbour's child - or against a member of his family - I don't think it's rocket science to say that putting this person away for a long period of time will not necessarily mean that he will be persuaded that what he did was wrong and won't do it again.''

Justice Neave said the ''restorative justice'' principle, used for young sex offenders in South Australia and overseas for violent offences, was not a soft option and often harder on the accused than traditional courts.

Under the path, sex offenders would be selected for the program under strict guidelines to be developed by the DPP, victims groups, defence lawyers and the judiciary. Repeat offenders would be excluded.

Justice Neave said she had spoken to many sex assault victims who were not concerned only with retribution. ''They want a voice in the process.''

Rick Perry, Christian: What Would Pilate Do?

Tom Junod | Esquire | September 7 2011

Rick Perry is a Christian. It does us no good to ask, as Christopher Hitchens did last week, if he really believes what he says he believes; better to take him at his word, for then we can hold him to it. That is, we can see if he's a Christian not only by word, but by deed — if he is Christian by the proclaimed standards of Christianity.

Of course, Perry is very much a Christian by word. He is not only a professing Christian; he is a professional Christian, whose profession of Christian faith at a mass prayer rally in Houston served as prelude to his presidential campaign. Now, there are Christians who might regard as repugnant a man engaging in public prayer for the purpose of indicating his designs on power, but the American evangelical Christians Perry was courting are not among them. These are Christians who have made their peace with power; who have made their peace with wealth; and who have made their peace with war — who have, indeed, adapted themselves to the needs of a belligerent nation as surely as their ancient ancestors made their peace, in the form of Catholicism, to the needs of Rome. American evangelical Christianity is a mutant form of Christianity, in the sense that it is an evolved form of Christianity, in the sense that it has exchanged the nearly impossible terms that Jesus laid out in the Sermon on the Mount with terms that are much more favorable for aggressive growth and convenient for a healthy rate of return.

So it is no use applying the old "What Would Jesus Do?" standard to Rick Perry, for Perry belongs to a church that put aside that standard long ago. Would Jesus walk around in $2000 worth of hand-tooled boots? Would Jesus brag about jogging while "packing a Ruger .380 with laser sights and loaded with hollow-point bullets?" Would Jesus balance his budget by cutting funds to education? Would Jesus reject all clams of science except the "science" of raising funds through patronage? These questions are absurd, not only because they're anachronistic, but also because they have nothing to do with American evangelical Christianity in theory or practice. Rick Perry can with clear conscience call himself a Christian because he has accepted Jesus Christ as his Lord and Savior, and has as a consequence rejected the moral imperative of progressive taxation, the factual basis of evolution and global warming, and the extension of the Republican mantra of "personal freedom" into the realm of marriage. That the Jesus of the Gospels is notably forgiving in regard to sexual sins and notably unforgiving in regard to economic ones matters little; the Jesus of American evangelical Christianity has it the other way around, and that is the Jesus Rick Perry — along with millions of other Americans — has elected to follow.

Indeed, by the terms of the faith he professes, Perry might even be able to reconcile his Christianity with his enthusiastic application of the death penalty, despite the apparent contradiction of a religion created in emulation of history's most notable executionee giving its ultimate blessing to the executioner. After all, when American evangelical Christianity takes a New Testament position on the defense of "innocent" — i.e., unborn — life, it is reserving for itself the right to take an Old Testament position on the guilty kind, with the result that a religion that preaches from the pulpit against the expansion of state power in the form of Obamacare countenances it in the form of lethal injection. Although he has signed death warrants for 200 men; although like his predecessor in Austin he lacks the quality of mercy; although he has overruled even the rare recommendations of clemency from his hand-picked clemency board; although he is, on the face of it, that most un-Christian of things, a governor with a black hood, he can always say that he is following the biblical charge of rendering to Caesar what is Caesar's, and of fulfilling the law.

But what if he signed the death warrant for an innocent man? This is a biblical offense, no matter how you cut it. American evangelical Christians often protest the lack of absolutes in American morality — the soft-peddling of the language of sin in favor of the language of "mistakes." Well, if Perry permitted and saw through the execution of an innocent man, would that be a mistake, or would that be a sin? If a mistake, it would put into question the morality of the Texas death penalty apparatus; if a sin, it would question the morality of Rick Perry. If a sin, it would fall to Perry, as a Christian, to confess it, and ask forgiveness for it. If a sin, and if Perry's Christianity is anything but a campaign promise, he would have to welcome a reckoning — or at least a public examination that would decide whether the sin in question was committed by the man he put to death or by the state he governs.

Magistrates were told to send rioters to crown court, emails show

Owen Bowcott | The Guardian | 14 September 2011

Emails sent to justices' clerks after August riots raise questions about judicial independence and the use of blanket guidance

Magistrates were urged to abandon sentencing guidelines when dealing with rioters last month because "nothing like this was envisaged", according to court documents released to the Guardian.

The text of two controversial emails circulated to justices' clerks immediately after August's disturbances raises questions about judicial independence and the use of blanket guidance irrespective of individual cases. One human rights group described the emails as "disturbing".

The messages appear to betray a sense of confusion – verging on chaos – behind the scenes as hundreds of suspects arrested for looting and violence were processed in late night emergency sittings.
The documents, written by a senior justices' clerk in the London regional office of Her Majesty's Courts and Tribunals Service (HMCTS), were released by the Ministry of Justice following a freedom of information request from the Guardian.

They were sent out on successive days at the end of the week in which rioting had started in Tottenham, north London, following a police shooting, before degenerating into widespread looting as it spread across the capital and other cities.

The emails were sent to justices' clerks, who sit alongside magistrates providing guidance on the law and sentencing recommendations. The first, addressed "Dear all", began: "I should be grateful if you would ensure that the following advice is cascaded to every member of your legal team as soon as possible.

"The sentencing guidelines cannot sensibly be used to determine the sentence in cases arising from the recent disturbances/looting. When the guidelines were written nothing like this was envisaged."
Most of those arrested for looting had been charged with "commercial burglary", it noted. "The general advice from the higher judiciary is that we will not be criticised if we return these … If in doubt, commit to the crown court."

Some of the words in the first email were missing. The second message read: "Apologies for the fact that the email … sent yesterday is confusing and frankly incoherent. The intention was that you should advise magistrates to commit to the crown court cases of commercial burglary, or handling … or violent disorder arising from the recent disturbances.

"There is a general acceptance that what occurred earlier this week is not covered by the sentencing guidelines and it will be very much the exception that such cases are sentenced in the magistrates courts …Hopefully before too much longer we may get some guideline cases."

Commenting on the emails, Sally Ireland, the director of policy at the civil liberties group Justice, said: "Justices' clerks can give directions to assistant justices' clerks under the Courts Act; however, the content of the email is disturbing. The application or disapplication of sentencing guidelines should be a matter decided on a case by case basis."

She also questioned the term "higher judiciary", saying: "In what way did they give this general advice? The higher judiciary does not have a role in allocation/sentencing by magistrates, except in the case of appeals and guideline judgments."

Paul Mendelle QC, a former chairman of the Criminal Bar Association, said: "The idea that established Court of Appeal authorities can be set aside or ignored by the secret advice from an anonymous civil servant strikes me as undemocratic at best and unconstitutional at worst.

"Blanket advice to magistrates to deal with all cases in one particular way – commit to crown court – regardless of the facts of the individual cases might be seen as an unlawful fetter on their discretion."
At the time the emails triggered alarm on at least one bench, prompting questions about magistrates' independence.

The week after the riots, Novello Noades, the chair of Camberwell Green magistrates court, in south London, claimed the court had been given a government "directive" that anyone involved in the rioting should be given a custodial sentence. She later retracted her statement and said she was mortified to have used the term "directive".

It has been generally accepted in courts in the legal and judicial world that participation in violent riots and looting should be deemed an aggravating factor, leading to harsher sentences than for theft committed as shoplifting.

John Thornhill, chairman of the Magistrates' Association, said: "Magistrates and legal advisers work as a team in court with the legal advisers having a role in law to advise the magistrates on all matters relating to the law and the magistrates making independent decisions based on any advice given ... this note refers to the issue of mode of trial decisions. Magistrates have to decide whether the maximum sentence of six months custody is sufficient for a single offence and if not then the matter is sent to the crown court.

"It is not in any way outside guidelines as statute allows the judiciary to raise the seriousness of an individual offence after taking account of the harm caused, the culpability of the offender and any aggravating features such as an offence committed during grave disorder."

Some sentences handed down immediately after the riots in August were criticised as being off the judicial scale. The former director of public prosecutions Lord Macdonald warned courts risked being swept up in a"collective loss of proportion". One person got six months for stealing £3.50 worth of water. Two youths were jailed for four years each for inciting riots on Facebook that never took place. Some sentences have since been overturned.

Unusually, the Ministry of Justice provided an accompanying explanation with the emails, rebutting any suggestion that magistrates had been inappropriately influenced by government officials or that the independence of the judiciary had been compromised. "HMCTS is not involved in any guidance justices' clerks choose to give to magistrates, as this guidance is given whilst acting in a quasi-judicial capacity," it said.

"It did not contain any direction by HMCTS or the Ministry of Justice on how anyone should be sentenced. Nor were there correspondence or conversations with the justices' clerks on any guidance prior to its issue."

The statement continued: "We believe there is a strong public interest in ensuring there is confidence in the independence of the judiciary and we do not want this to be undermined by a perception the government has inappropriately issued any directions as to the types of sentences which should be handed down."

According to the latest MoJ figures, Some 1,715 riot-related suspects have so far appeared before magistrates courts, two-thirds in London.

A lawyer in London

The Law Report | 23 August 2011

Meet London defence lawyer Bruce Reid and his rioting clients: the 20-year-old pregnant mum who stole a vacuum cleaner, the middle class student who's jeopardised a promising career over some stolen clothes, and the bank clerk arrested in a ransacked mobile phone store.

Listen to interview with Bruce Reid by Erica Vowles.

Sentencing remarks: The Queen v Stephen Carter, David Beswick, Linda Mary Boyd, Michael Gillespie-Doyle

Why the Malaysia Solution failed

RN Saturday Extra | 3 September 2011

The Prime Minster Julia Gillard says that the High Court 'has rewritten the Migration Act' in ruling against the government's Malaysia Solution. The PM was particularly critical of Chief Justice Robert French, saying that he had made different rulings on the same law in the past.

She was referring to the Federal Court ruling of 2001 which allowed the then Howard government to send 433 Afghan refugees who were on board the MV Tampa to Nauru for processing. It was a move largely recognised as being the genesis of the Pacific Solution. We look back at that Federal Court decision and explore why it differed from the High Court's ruling on the so-called Malaysian Solution.

Listen to story including interview with Ben Saul, Professor of International Law at the Sydney Centre for International Law

Story Researcher and Producer: Laura Bailey

NSW to run 'social impact bond' pilot

RN Breakfast | 6 September 2011

The NSW Government will hand down its first budget today - describing it as 'deliberately ambitious'. The government will launch a pilot tender process dubbed 'social benefit bonds' where private investors are encouraged to fund social programs such as reducing demand for foster care and lowering re-offending rates among former prisoners.

Listen to Fran Kelly's interview with Peter Shergold, Chancellor of the University of Western Sydney and professorial chair at the Centre for Social Impact at the University of NSW.

Public Enemy's Chuck D: UK riots signify 'new world order'

Michael Hann | The Guardian | 9 September 2011

Veteran rapper offers London crowd the benefit of his thoughts on the recent chaos in English cities

As Public Enemy finished their UK tour at the Forum in London on Thursday night, their leader Chuck D told the crowd last month's violence in English cities had been inevitable. "This is a new world order, if you push people they're going to fuck shit up," he said. "But there is enough to go round for everyone. Tell your government that. Equal rights are important."

He added that the legendary hip-hop group had nearly cancelled their UK shows after the violence. "We almost didn't make this gig because of what happened here a month ago," he told the crowd. "People in America were going nuts and they were scared about coming over here. They were going: 'What the fuck is going on in England? A white man is acting like a black man.'"

Flavor Flav dedicated the song 911 Is a Joke to those imprisoned for rioting.

Public Enemy are perhaps the most politically involved rap outfit of the last 25 years. Chuck D coined the phrase "black folks' CNN" to describe hip-hop's ability to instantly and accurately report on the problems facing inner-city black communities in America. In August he recorded Notice, Know This, a response to Jay-Z and Kanye West's Otis, drawing attention to the discrepancy between the consumerist boasts of superstar rappers and the economic disempowerment of the communities the music represents.

Punish the feral rioters, but address our social deficit too

Ken Clarke | The Guardian | 5 September 2011

Three-quarters of the adults charged already had a conviction, which is why urgent reforms are needed

I've dealt with plenty of civil disobedience in my time, but the riots in August shocked me to the core. What I found most disturbing was the sense that the hardcore of rioters came from a feral underclass, cut off from the mainstream in everything but its materialism. Equally worrying was the instinctive criminal behaviour of apparently random passers-by. What are the lessons for the justice system?

The first is that disorder on our streets must be met with a firm, fast and sustained response. The system was briefly caught unawares, but tested like never before, and ultimately gave a quick and definitive answer to those who thought they could commit crime without consequence. It's thanks to the police officers who cancelled leave, the staff who kept courts open all hours and the judiciary who worked through the night that rioters high on violence soon found themselves facing the cold, hard accountability of the dock. I am hugely impressed by the dedication of our staff, some of whom worked 35-hour shifts to ensure the efficient delivery of justice. These are public-spirited people, doing their duty in the best traditions of public service. The criminal justice system was itself on trial and, though it's still early days, so far it has coped well. It has the capacity – whether in courts, in prisons, in prison transit or probation – to deal with those who come before it.

The second lesson of the riots is that they reaffirm the central point of any sane criminal justice policy: where crimes have been committed, offenders must be properly punished and pay back to the communities they have damaged. The scale of the violence and looting was new, but crimes like arson and burglary are not – and our courts do deal severe punishments to serious offenders.

Interview with Dr Alex Wodak

 Lidija Bujanovic | Right Now | 1 September 2011

On Friday 22 July 2011, Monash University’s Castan Centre for Human Rights Law Annual Conference was held in Melbourne. Dr Alex Wodak AM, President of the Australian Drug Law Reform Foundation and Director of the Alcohol and Drug Service at St Vincent’s Hospital in Sydney addressed the topic “A Human Rights Approach to Drugs”. Following the speech Right Now’s Lidija Bujanovic spoke with Dr Wodak about drug policy, the failure of current drug policy and the need for reform both internationally and in Australia.

RN: What drove you to form your views on drugs policy and law reform?

AW: The start for me was when I was working in St Vincent’s Hospital in the early 1980s and we realized that about 3500 gay men had become infected with HIV within 10 minutes walk from the hospital. Here lived the largest concentration of gay men in the country and the same neighborhood has the largest population of injecting drug users in the country. I figured that if 3500 gay men had become infected, some of those men would be injecting drugs, some of those who injected drugs would share needles with non-gay men and women. And some of these non-gay injecting drug users who had HIV would then have sex with non-drug injecting men and women. So I could just see this cascade of HIV going out to the wider population. How could it be stopped?

The first needle syringe programme was started in Amsterdam. I knew we needed something like that here, that my arguments were very compelling and that the arguments against a needle syringe programme were very weak. Yet I couldn’t get permission to start a needle exchange programme. I wrote 13 submissions to the NSW Department of Health seeking permission to start a pilot and each submission was either rejected or ignored.

I went through purgatory: I knew I was right. Yet my colleagues and I ended up having to commit civil disobedience to make it happen. Here was a real need to prevent a health, social and economic catastrophe and I wanted to do something which clearly was logical.

I then started reading about the history of drug prohibition and realized the evidence of it working didn’t exist. My ideas crystallized over time through a long process of research. I started that needle exchange on 12 November 1986 and trying to convince people we must reform our drug laws is now a big part of my work. When I first started saying what I now say, 25 years ago, I was vilified for it. I’m still criticized for supporting drug law reform but most people these days tend to agree.

So how do you react when government claims its policy is evidence based?

Well, I challenge it, tooth and nail, line by line. I point out what they’re saying is nonsense and what they say privately is different to what they say publically. It’s interesting when you look at the kinds of comments made in private or in confidential documents that somehow emerge into public view, compared to comments made during election campaigns. It is a very difficult issue for politicians to openly and honestly deliberate about.

I point out what [the government is] saying is nonsense and what they say privately is different to what they say publically.

Does the current system hinder the realization of certain human rights? In your presentation you mention freedom of association, to health care, equality rights…

The list goes on and on and I’m not really well placed to give an analysis of the exact infringements of rights due to drug laws. Whenever I looked as a layman at the different definitions I felt that most of the criteria used to define human were significantly breached. These are major and significant breaches. For the first time ever in 2009 or 2010 there was international consideration of the human rights of injecting drug users in the UN.

A way to get out of three jails

Anna Patty | SMH | 7 September 2011

A RECORD drop in the prison population has allowed the government to close Parramatta, Berrima and Kirkconnell prisons, cutting 350 jobs by the end of the year.

The Corrective Services Commissioner, Ron Woodham, said there were 11,224 prison beds at the end of last month, but just 9847 inmates, down from 10,400 in June last year.

Mr Woodham said 600 to 650 beds would be cut as part of savings, which would need to be found across the organisation. He said voluntary redundancy packages, redeployment and retraining had been offered to staff and ''every attempt is being made to backfill positions''.

The Attorney-General, Greg Smith, said a disused section of Parklea Correctional Centre would be reopened to provide 80 beds for relocated inmates. He said the government was also investing $46 million in programs to reduce reoffending and $78 million to build new courts.

The shadow attorney-general, Paul Lynch, said the job cuts would have an adverse affect on local communities. He said there had been no dramatic changes in sentencing patterns which would justify reducing prison capacity.

''The closures are likely to make the corrective services system harder to manage,'' he said.

Greens MP David Shoebridge said the prison population in NSW was 11,000 according to a report from the National Drug and Alcohol Research Centre at the University of NSW that was released last month.

''While the government has stated that it will close three prisons, it has also indicated that it will move to privatise the remaining prison facilities in NSW,'' he said. ''When this government says it is examining 'the potential for greater contestability' in the delivery of corrective services, there should be no doubt in anyone's mind what he meant. This means privatisation.''

Booze Territory: The Crisis of Alcoholism

 Anna Krien | The Monthly | September 2011 

On a Tuesday morning, I make my way to the Gap View Hotel for a drinking session starting at 10 am. I’m told this is one of Alice Springs’ three notorious ‘animal bars’ but, when I get there, the hotel is all shut up. The car park is empty except for a car with an Aboriginal couple sitting inside. I tap on their window and wave my hand at the closed pub. “Not open?”

“2 pm,” comes the answer.

“Oh,” I nod. I’m about to get back into my car when I realise the woman is talking about the bottle shop.

“You mean the bottle shop isn’t open till two?” I ask. She nods. “You waiting around for that?” She nods again. “Isn’t there a bar here?” That’s when I discover a section of the pub is open. The woman directs me out of the car park, back along the main road and down the side of the hotel. A small concrete corridor with no roof doglegs until it is hidden from street view, where a toothless security guard greets me. He raises an eyebrow, then runs a metal detector across my clothes and confiscates my pens.

“Someone’s been stabbed with a pen before,” he says. “You can grab ’em when you leave, luv.”

Behind me an Aboriginal boy, just turned 18, offers a scrap of paper to prove he’s of age. Kindly, the security guard explains how to get a proper ID and turns him away. I walk up a cement ramp to a bar, billiard tables and pokies. There are lots of people milling around but the guy at the entrance tells me it doesn’t “get pumping till 11.30 am”, when the bar “switches to full-strength beer”. Techno music blares out of speakers. As I wander around, a Sudanese security guard approaches me, his face concerned. “Am I lost?” he wants to know.

In a way, I am. I don’t want a beer. It’s 10 am, for Chrissake.

*

At the Todd Tavern down the road it’s just after midday and the place is jumping. Billy Joel is on the jukebox and women jiggle in time, waiting to be served. On one side of the tavern is the Riverside Bar, the original ‘animal bar’, complete with blackened windows creating a kind of false night for its drinkers, who chuck their empties into wheelie bins dotted around the room. A lone white man runs the bar.

“They’re comfortable in there,” numerous people say to me when I ask about the low-slung ceiling that makes you hunch and the permanent night. “No oneforces them to drink there.”

In 2009 CCTV footage revealed 236 people inside the small bar at 11.48 am when it is licensed for 100 – the Todd was suspended from trading for 5 days. Today, around the other side of the tavern, the cleaner and more sophisticated bar with clear windows is also full of Indigenous people. What used to be a voluntarily segregated pub – blacks in the animal bar, whites in the classier section – is now black and black.

Outside, Indigenous people are hanging around the closed roller doors of the Thirsty Camel drive-through bottle shop attached to the Todd Tavern. Some form small groups, others wait in banged-up cars across the road, and a lone man, his purple shirt tucked into black pants, his belt buckle and boots shining, with a cowboy hat tilted over his eyes, leans against the brick wall, waiting.

At 2 pm the shutters will open, the tavern will close and the drinking will shift to the dry riverbed of the Todd River.

The change in the hour brings about a different kind of busyness as pubs are cleaned for the late afternoon trade. It is rush hour for Alice Springs taxi drivers. “No car, no drive-through” is the new rule for these bottlos (unless you’re white, in which case you can walk up and buy whatever you want), and taxis are hailed for the 10 metre trip and paid much, much more than the distance demands.

‘Bush’ minibuses that drive back and forth from remote Indigenous communities are cheered and hailed into the Gap View Hotel car park, the accordion doors opening for six or so blackfellas, some so zonked they can barely muster any sign of life. And then off they go! Through the drive-through!

I watch as the guy in the purple shirt and cowboy hat approaches the bottle shop and is shooed away like a feral dog. “No car, no drive-through,” an attendant yells at the man’s back as he slinks away.

Malaysia Solution judiciary hits back at Julia Gillard's 'unfair' criticism

Joe Kelly | The Australian | 3 September 2011

OFFENDED judges and magistrates have hit back at Julia Gillard's criticism of the High Court and Chief Justice Robert French, labelling her attack as "unfair" and "extraordinary".

As Labor waits for legal advice from the Solicitor-General on the High Court's decision to overturn the Malaysia Solution, the Prime Minister was yesterday forced to clarify the intention of her attack.

Ms Gillard said she had sought only to put the facts of the matter on the table because the public was entitled to an explanation and, strengthening her rhetoric, claimed the High Court had "changed the law".

"I don't resile from one word of what I said," she told Sky News.

"The simple facts are that there were precedents that obviously those advising us legally drew on.

"Some of those precedents are from the current Chief Justice of the High Court himself.

"They were part of what the legal advice to us rested on."

Ms Gillard dismissed suggestions she had challenged the separation of powers as "ridiculous" and provided a reassurance her government had accepted the court's decision.

But the Judicial Conference of Australia -- with a membership of more than 600 judicial officers across the nation -- yesterday suggested Ms Gillard had gone too far.

"Responsible criticism by one branch of government of another is a healthy sign of a free society," said the organisation's vice-president, Philip McMurdo.

"Irresponsible criticism, especially from a Prime Minister, could tend to upset the balance of separated powers which is essential to that society."

The JCA said yesterday Ms Gillard's statement that the High Court had missed an "opportunity" to smash the people-smugglers' business model fundamentally misconstrued the role of the court and was "misguided".

"It is not the court's role to look for and take 'opportunities'. Its job here was to decide whether the minister's actions were lawful, according to the statute which the parliament had enacted," the JCA said.

Ms Gillard's decision to single out Chief Justice French for special criticism was described as "extraordinary" and "unfair". "He is one of six justices who reached the same conclusion. The seventh dissented," Justice McMurdo said.

The rebuke from the legal community comes as the government prepares to receive the advice of Solicitor-General Stephen Gageler on the consequences of the Malaysia Solution for offshore processing.

The advice, expected within days, is thought to confirm his initial oral counsel to the cabinet on Wednesday night following the High Court's decision to overturn the Malaysia Solution.

Some Labor MPs believe there will be scope for offshore processing to continue despite Ms Gillard's warning that the decision could throw the practice into doubt.

While the Solicitor-General's legal advice could tie the future of offshore processing to the need for further legislation, the opposition says this step is not necessarily required.

"There is nothing in the High Court decision that outlaws offshore processing," opposition legal affairs spokesman George Brandis said.

Legal aid lawyers buckle under work stress

Geesche Jacobsen | SMH | 6 September 2011

A STAFF health survey within Legal Aid NSW has exposed high levels of stress, concerns about the bullying of criminal lawyers and found that workers compensation claims for its criminal solicitors are running at twice the national average.

Coming as the government prepares to review the provision and funding of legal services in NSW, the survey found that 13 per cent of claims within the service are due to mental health problems.

The survey reports solicitors have had to interview clients in the street because of a lack of facilities. Inadequate resources and slow computer systems also contributed to their frustrations. Some lawyers said they were not always fully briefed at the start of a trial, had inadequate information to manage their cases and were poorly trained to handle emotionally charged situations.

Sources suggest legal aid solicitors sometimes see as many as 30 clients a day, allowing less than 15 minutes per consultation. Some solicitors outside of the Sydney CBD are understood to manage as many as 120 cases every month.

Last month, the Attorney-General, Greg Smith, informed staff of a government review of the provision of legal assistance to the community. The review will make some recommendations on how to improve services, especially to disadvantaged groups, but will do so considering ''the level of funding provided''.

Mr Smith has previously announced a review of the amount of legal work contracted out to the private sector. The review might also examine a controversial restructure of Legal Aid, which was announced late last year.

The health survey found 65 per cent of staff reported sleep difficulties and 36 per cent said they felt stressed at least once a day. The pace of work and time pressures were listed as major sources of stress. Staff felt bullied by managers or supervisors and reported problems with conflicting demands and burnout.

Many said the workplace culture encouraged ''toughing it out'' in difficult situations and seeking help was stigmatised.

They also mentioned the extreme emotional demands of their job, and many reported their clients were violent or aggressive and had unrealistic expectations.

About two-thirds of the administrative and legal staff of Legal Aid's criminal law division took part in the survey, but the report's authors admitted that results from more detailed focus groups were not random and ''influenced somewhat by … [staff] work commitments''.

It has taken more than a year to produce the results of the survey, which mirrors the complaints of two earlier surveys involving legal aid staff in 2008 and 2009.

The chief executive of Legal Aid NSW, Alan Kirkland, said he was taking the issue very seriously and would develop an ''organisational health and wellbeing strategy'' focusing on mental health, the training of managers and changes to the workplace culture.

''It is always a reality that Legal Aid will have a large workload. What we need to do is make sure that it's fairly shared,'' he said.

''What the report suggests is that most of our staff are in good health and possibly doing better than other lawyers.''

While the survey found staff reported similar levels of ''psychological distress'' to the general population, it also found there was a higher proportion of those with severe symptoms of stress, anxiety and depression. The survey also found the staff surveyed felt committed to their work and many enjoyed working towards social justice objectives.

''Many of the stressors raised by staff in the present study are inherent to the work they do and the environment in which they do it,'' the study concluded.

Goldman Sachs: More Than A Travesty Of A Mockery Of A Sham

Shah Gilani | Forbes | 9 February 2011

Goldman Sachs isn’t the only bank to rip-off its clients and America. But because it is the best at what it does it is the most profitable bank in the world, for now.

Regular, old everyday trading is the key to Goldman’s success.What does that mean? I’m not talking about Goldman’s “big short” and how it bet massively against the subprime mortgage market while simultaneously selling huge quantities of designed-to-fail mortgage securities to its own customers.

And I’m not talking about how Goldman gamed AIG, the largest and certainly biggest too-big-to-fail insurance company in the world, into writing hundreds of billions of dollars of credit default swaps on subprime and AAA-rated mortgage pools for its own benefit. Then with its contracted ability to call on AIG for more collateral in the event of AIG’s downgrade helped to drive AIG’s downgrade and trigger the cash capital calls that sank AIG while (get this) simultaneously profiting on the rising price of the credit default swaps Goldman itself bought on (you guessed it) AIG.

As a former Wall Street executive and hedge fund manager, I’m in awe of the symmetry and elegance of those trades. But that’s not what I’m talking about.

I am talking about what Goldman does every day; its little old trades and how they set them up.

Here’s a good example. Just a couple of days ago Goldman sent out a non-public report to “institutional” clients, namely hedge funds. It was pretty dark. Apparently, its author, Alan Brazil, in the 54 page document said that European banks needed a trillion dollars more capital and that China’s growth miracle was unsustainable among other soothing prognostications.

Mind you, Mr. Brazil isn’t a research analyst walled off from Goldman’s trading desk. He sits on the trading desk where the bank’s customers’ business is transacted on their behalf by Goldman traders who also trade for the benefit of the House, namely, Goldman Sachs.

No doubt, Mr. Brazil was just alerting the bank’s big trading customers of some goings on around the world and offering some help on how they might protect themselves, which he did in the form of suggested trades he’d help them put on. Call it just business as usual.

Of course, Goldman traders, sitting on the trading desks where order flow from customers, clients and countries around the world ends up, would never front-run those orders, nor would they ever use that order flow and all the other order flow from all the other trading venues they have their hands in and on to feed their arbitrage-eating, high frequency trading algorithms. Never.

But, what they can do, legally, as market-makers, is take the other side of any of the trades that come their way. And for that matter, take any side of any trade, or take any side they want in anticipation of any trade they think might come their way in their duties as bona-fide market-makers.

It’s just everyday trading at Goldman that makes them so profitable. In 2010, only 9.3% of Goldman’s profit came from investment banking fees. Most of the rest came from everyday little transactions they often made as market-makers helping their clients.

But the weight of Goldman’s heavy foot on its clients and America is being resisted. The bank faces untold litigation costs and potential damages from pending suits too numerous to list. And worse, regulators and the Justice Department are looking under Goldman’s shoe to determine if it has a soul.

In my opinion, Goldman isn’t just a travesty of a mockery of a sham, it is a criminal enterprise and worthy of being stepped on itself.

As a note of disclaimer, I am not short Goldman. But after this piece is out for a few hours, by the end of today, I just might put my own foot down.

'Deaths in custody' corporate manslaughter crime created

BBC Online | 1 September 2011 

Police and other authorities can now be prosecuted over deaths in custody in England, Scotland and Wales.

Legislation which has now come into effect means police forces, the MoD, UK Border Agency and private firms managing people held in custody can be prosecuted for corporate manslaughter. The main legislation came into force three years ago but ministers gave public bodies which hold people in detention until now to prepare for it.

Campaigners have welcomed the change.

Corporations can already be prosecuted for corporate manslaughter or for the equivalent offence (corporate homicide) in Scotland. The extension of these offences to public bodies involved in detention means they could be prosecuted if they failed to ensure the safety of someone in their care.

Examples could include deaths during an immigration removal or when someone has been restrained using an unauthorised or badly taught body hold.

The law does not cover incidents abroad, such as where someone dies in the custody of British forces. However, British nationals can be convicted of causing a death through gross negligence, even if the fatality occurred overseas.

The provisions are not retrospective, meaning the law could not apply to cases such as Jimmy Mubenga, an Angolan man who died during his deportation in October 2010.

Jonathan Grimes, a health and safety lawyer with Kingsley Napley, said: "Existing law already allows a criminal prosecution of police officers, prison officers or others responsible for detaining members of the public, following a death in custody, where negligence on the part of these individuals can be proven to have contributed to the death.

"The Corporate Manslaughter and Homicide Act is about holding an organisation to account where its negligence causes a death.

"As such the change is to be welcomed, not least since it may focus custody-providing organisations on ways they can ensure the safety of those they are responsible for detaining."

Inquest, a campaign group, said that since 1990, juries had returned 12 verdicts of unlawful deaths in custody at coroner's inquests - but there had been no successful prosecutions. Juries now tend to return narrative verdicts in recent years, exlaining the circumstances of the death in custody.

Helen Shaw, co-director of Inquest, said: "While not all deaths in custody are a result of grossly negligent management failings that would lead to consideration of a corporate manslaughter prosecution, many of Inquest's cases have revealed a catalogue of failings in the treatment and care of vulnerable people in custody.

"The new provisions provide a new avenue to address these problems and will hopefully have a deterrent effect, preventing future deaths and could also have a key role in maintaining confidence in public bodies by addressing the accountability gap that currently exists following a death in custody."

Case study: Mikey Powell

In 2003, Mikey Powell died of positional asphyxia while being transported in a West Midlands police van. Ten police officers were cleared at trial and the force said lessons had been learned. Mr Powell's cousin, Tippa Naphtali, has welcomed the changes.

"Until now, families like ours could only prosecute or pursue the individual officers involved in a death in custody," he says.

"If that was the situation in Mikey's case, we would have the opportunity to hold the institution accountable. Now that this has become law, senior police officers will be a lot more careful about how prisoners are treated.

"I believe it will curtail the behaviour of certain officers and officials and we should see a massive reduction in deaths in custody. The institution itself can no longer hide behind crown immunity."
Legal briefing on Mikey Powell's death by Doughty Street Chambers

Judge wants bench to 'reach out to victims'

Pia Akerman | The Australian | 1 September 2011

VICTORIA'S highest judge has admitted a gulf exists between the judiciary and victims of crime, proposing significant sentencing reforms to give victims and juries greater confidence in the legal system.

Supreme Court Chief Justice Marilyn Warren yesterday suggested judges should sit down with victims and their families after sentencing a criminal and explain in detail the reasons for the punishment.

"It is very frustrating for victims and their families where they have a sense of being a bystander when they go to court," she said. "There is a disconnection between us, and you wish to be just, but at the same time you are a compassionate human being and you would like to reach out."

In a move welcomed by victim support groups, she also floated trialling a US process where juries sit in on plea hearings and give recommendations to the judge on an appropriate sentence.

"The judge is the one in the middle who has to find a balance and deliver justice, but in terms of victims we still do not do enough," Chief Justice Warren said. "They do feel separated, alienated from the process.

"I can't help but wonder, if we sat down as judges and even just listened to the family after it was over, it might help."

A report released yesterday by the Victorian Sentencing Advisory Council found that only 28 per cent of 1200 people surveyed felt satisfied with court decisions, while 63 per cent thought judges were out of touch with what ordinary people thought.

Just over half were confident judges imposed appropriate sentences most of the time, and 59 per cent felt confident in the courts and legal system more generally.

Victims of crime had less confidence in the system than people who had not been victims.

Supermarket 'pressured' over Liberal Senator Mary Jo Fisher

Candice Keller | AdelaideNow | 1 September 2011

A PERSON acting for Liberal Senator Mary Jo Fisher pressured a supermarket to drop shoplifting and assault charges against her, a court has heard.

Fisher, 48, appeared in the Adelaide Magistrate's Court this morning charged with theft and assault during an alleged incident at Frewville Foodland last December.

Opening the trial, police prosecutor Sergeant Brendon Beh said Senator Fisher allegedly left the store after only paying $7.50 for $92 worth of groceries. It was alleged she assaulted a store security guard, Cathryn Groot, who confronted her in the supermarket's car park after she was questioned inside the store by management. Senator Fisher allegedly pushed Ms Groot away and shut the driver's door of her car on Ms Groot's arm several times.

Sgt Beh told the court Senator Fisher told police called to the supermarket that she realised she did not have enough money to pay for all the goods so she paid for some and got into her car to get more money. Senator Fisher also told the police she did not let Foodland staff know what she was doing when she went to the car. Later that night she went back to Foodland and paid for the items.

Sgt Beh told the court that Ms Groot was the prosecution's key eyewitness because CCTV footage of the incident had been erased and would not be tendered as evidence.

Do we have a fundamental right to film the police in public?

Hugh Tomlinson QC | The Guardian | 31 August 2011

English case law is unclear, but rulings in the US and Strasbourg suggest we do have a right to photograph public officials

As a number of recent cases have made clear, filming policing activity in public places is a vital method of holding police to account. But there have been continuing tensions between the police and photographers over the practice. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers. A campaign called "I'm a photographer, not a terrorist" was launched to protect the rights of those taking photographs in public places.

However, although guidance issued by, for example, the Metropolitan Police has made it clear that

"Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel"

this often does not appear to have come to the attention of individual police officers (or security guards).

There have been some successful complaints about the use of police powers to prevent photography (see, for example, the complaint by Jess Hurd) but there is no English case law on the relationship between the right to take photographs of the police and freedom of expression. Advances in technology has meant that the legal issues have arisen in a number of different jurisdictions (see "Is filming the police a felony or a right?").

In this context, a recent decision from the United States is of considerable interest. In the case of Glik v Cunniffe (26 August 2011) the US Court of Appeals for the First Circuit held that there is a First Amendment right to record police activity in public. Glik was arrested on 1 October 2007, after openly using his mobile phone to record three police officers arresting a suspect on Boston Common. He was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace. The charges were dismissed but, with the assistance of ACLU, Mr Glik brought a claim alleging, inter alia, that the police officers violated his First Amendment right to record police activity in public. The Judge refused to dismiss the claim on the basis of qualified immunity and the Court of Appeals dismissed the police appeal holding that

"Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."

It was noted that

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs".

The court's conclusion will resonate with photography campaigners in this country:

"A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

The Citizen Media Law Project and the Thomas Jefferson Center have posts about the case.

Although First Amendment jurisprudence is not always consistent with the approach of the English or European Courts, the principles set out in this case are ones which appear to be consistent with the Convention's approach. The importance of the right to gather information for the purposes of promoting public debate has been repeatedly recognised by the Strasbourg court and strongly suggests that there is a fundamental right to take photographs of the activities of public officials - particularly police officers.