The Law and Order Referendum
and other related issues in New Zealand
Justice System Reforms needed
The cumbersome workings of our current justice system are one of the causes of crime, as well as being a problem for victims. There are a number of problems, but the most pressing is that of bail.
Many if not most violent offences are committed while out on bail for another offence. The practice of granting bail to repeat violent offenders is bound to contribute to the worsening of crime, as most offenders then have nothing to lose by committing more offences, particularly with the concurrent sentencing practiced here currently. These offenders usually have no work, and are unlikely to get any while out on bail - what employer would take them on?
The only time bail should be allowed is for first time or non-violent offenders, who may well have legitimate business that needs attending to before their next appearance. The cost of keeping repeat violent offenders on remand will be high, but less than the likely cost of their offending while on bail. This will also be much easier on the victims, particularly if they live close to the offender.
There is one type of non-violent offender that should also be denied bail, the stalker, again for the sake of the victim. It is vital that stalkers be physically seperated from their victim. This raises another allied problem, that criminals and victims have to share the same physical space, in foyers and waiting rooms around the courts. This is now being addressed, albeit slowly, in courtrooms around the country.
much of our justice system is effectively operating in the dark
The second problem that urgently requires reform is that juries and the public do not have access to criminal records. This is utterly absurd, and deprives juries of the one vital piece of information they need in order to decide whether someone has committed an offence or not - their previous track record. Even if there is other substantial evidence, juries often are not comfortable convicting without this vital information. (I know this from personal experience - webmaster) Until this problem is dealt with, much of our justice system is effectively operating in the dark, with sometimes disastrous outcomes. This issue is now being addressed in Britain, when will that happen here?
Criminal records should also be a matter of public record, and online..
Criminal records should also be a matter of public record, and online, for the sake of employers, neighbours and any one else that needs to deal with a offender or potential offender. This is also much fairer on the innocent, as any suspicions or nasty rumours about an innocent person can be quickly and conclusively quashed. There is a public safety aspect also, with offences such as child molestation. Records of such offences are already available to the public overseas in the U.S.A. here at the VINE Group and in the UK at the Criminal Records Bureau. There is also now a similar initiative in Australia although it is on a pay per access basis.
Two qualifications do need to be added, firstly, that minor victimless offences should be excluded, and that offences are removed from the record after five years if the person concerned has not reoffended. See Law Society proposal. This period could be in proportion with the magnitude of the offence. This is only fair, as it allows someone who is set on rehabilitating themselves to free themselves from the stigma of past offences.
In addition, it seems utterly pointless to imprison someone for an offence committed more than ten years ago if the person has been law abiding since then, and constitutes no threat to the public. Such a proposal has now been put forward by Nandor Tzancos of the Greens.
...the archaic "double jeopardy" rule (is) ..almost a thousand years old...
Another issue that needs addressing is that of the archaic "double jeopardy" rule. Almost a thousand years old, it is way overdue for major amendment or even removal. In many parts of the world, such as Germany, another trial can be held for the same offence if sufficient further evidence comes to light.
The Law Commission has recommended some limited exceptions, but there is room for much more. The same commission has also recommended abandoning the unanimous jury verdicts requirement and going to majority verdicts, in order to avoid hung juries, and prevent rogue jurors causing problems. The sooner this is put into practice the better.
Much has been made over the years of the need to change the laws relating to guns over the years. It has been a subject of intense debate, much of which creates more heat than light. What does appear to have been forgotten is that gun laws, just like any other laws, are only obeyed by... people who are law abiding! Trite, but true!
Most of the tragedies of the last 20-30 years have not been failures of the law, but of its timely enforcement. The Aramoana case is a good example. A complaint had been laid by a bookshop owner of threats to kill 9 months previously, and had this and many others been followed up, Aramoana would never have happened. David Gray was clearly unstable, and should have had his guns taken off him.
The core problem is not guns, or for that matter any weapon, but the user
The Port Arthur incident was another example of a person clearly unfit to even be in the community. Martin Bryant gave all the warning signs of instability, yet again no action was taken, and many people needlessly died. The answer is not to make more laws, but to rigidly enforce the ones we have (by the way Tasmania's gun laws are similar to ours). The core problem is not guns, or for that matter any weapon, but the user. It needs also to be kept in mind that much of the violent crime here is carried out not with guns, but knives, bats, or whatever else comes to hand. Most of those who have run amok with guns have given clear indications beforehand of their instability.
As with cars, what needs to be regulated and controlled ultimately is the user, not the object. A 1-2 tonne car can kill every bit as messily and effectively as a gun, although granted that is not its primary purpose. This is amply demonstrated by examining the example of the Swiss, a society with a very high rate of gun ownership, but conversely a very low rate of gun offences.
On the other hand, here we have tougher laws, but rather lax enforcement of them. An example is the gang member known for years to have carried a handgun - yet nothing was done! He had even conveniently labelled himself as a gang member across his forehead!
The solution, as with automotive and most violent crime, is to ensure that those that pose a threat to society are removed from circulation. If they can't get hold of a gun, they will find some other weapon. And with the current lax enforcement of gun laws, chances are that they will be able to get access to guns illegally and with ease. There is no point in reinventing the wheel, this document provides a far better solution than any other we have seen to date.
Police and the Law
The Police force have for years been poorly funded and under staffed. Their work is often horrendously stressful . Their management has left something to be desired at times as well, witness the INCIS farce.
But the worst impediment to their ability to operate has been some of the absurd laws which restrain their ability to do their job. Members of the public who have personal experience of the effects of these laws as victims will understand the frustration frontline officers must feel with these obstructions.
The foremost problem would have to be the Young Offenders legislation, an insane piece of legislation that shields offenders under 16 from the responsibility for their actions. This would make some sense for a ten or perhaps twelve year old, but most of the problem offenders fall into the 12-16 age group. It is true that many of them are suitable candidates for rehabilitation, but this makes them no less a danger to the public.
Name suppression... is fast becoming an irrelevant anachronism.
Another piece of law that has recently drawn public attention is that regarding name suppression. Not only is this wrong, as it shields offenders from the consequences of their actions, but with the rapid expansion of the Internet, it is fast becoming an irrelevant anachronism. The recent case of the pot - smoking billionaire is a case in point, despite all his money and resources and aggressive action by his lawyers, his name was all over the Net and in email newsgroups within 24 hours.
Any victim who wanted to ensure that the name of the person who has hurt them is made known to the public, can do so via email or an overseas based website with relative impunity, regardless of any NZ suppression order. Information wants to be free, and with any case that attracts public interest will soon find its way to those who want it. The only situation where name suppression should and can realistically be granted is where the victim is agreeable to it, or in a clear case of self-defence.
Other various laws obstruct the police in their work every day, no doubt those in the force could provide examples. If the police were free and had the resources, they could use methods such as entrapment to catch car thieves and opportunist offenders who otherwise are difficult to catch. They have already taken some innovative initiatives in this direction with great success, for example buying an ailing second hand shop in Otahuhu and then running it as a front, buying stolen goods and then arresting the sellers later!
There has also been a suggestion that they reap some rewards for their work , fair enough too. Once the Police are given freedom to act on the major offenders, they will be more effective, less frustrated, and can then develop a better working relationship with the public. Unfortunately, George Hawkins has so far proved to be less than effective as a Police Minister, and the Police have ended up even more poorly resourced than under the previous administration.
There are a number of creative sentencing options that can be used to avoid imprisoning people who may not be violent but do present problems to society.
There are three main categories;
a) For thieves and burglars, probably the most constructive method of dealing with them is monitored detention bracelets, effectively confining them to a single location. This will save the cost of imprisonment and prevent reoffending. It will also enable the state to carry out rehabilitation more effectively, where it is deemed likely to be effective.
These types of offenders often however have a track record of other offences that do present a threat. Burglars do often go on to be rapists, and so on. Therefore whatever course of action is taken MUST be taken on the second or third offence, directly after or in conjunction with rehabilitation.
b) Stalkers and prowlers pose a difficult problem and they do tend to be repeat offenders by nature. Two approaches can be taken, one being the use of detention bracelets, the other being that of geographical removal. The latter is desirable where the offender lives close to the victim, and the two could also be used in conjunction in this situation. The former would need to be used where the offender is of the type that has a large number of victims largely at random.
Most of these offenders however are focused on one particular victim. The geographical removal solution is cheap, highly desirable for the victim as it isolates the offender, yet still permits the offender to live a normal life if they choose to do so. It is also a solution for which this country is well suited, with its long, thin shape and two main islands.
c) Drug users and dealers are quite a different group. Dealers are usually more of a threat, as they often have gang connections, and often are violent, in which case Three Strikes Law could be applied. Users and minor dealers, two groups with a large overlap, constitute a problem that is more medical than legal. Putting people in prisons for drug use alone, particularly cannabis use, is a waste of resources. It would be more to the point to institute treatment programmes, and deal with the causes for the drug use in the first place.
Prisons should be reserved for those who constitute an ongoing danger to the public.
Cannabis is another subject about which debate has long raged, and we do not intend to enter into it in any depth here. While cannabis is by no means harmless, there are sound arguments for (and against) legalising or decriminalising cannabis, amongst the foremost of which are that it will free up police and Justice Department resources as suggested by George Hawkins the new Police Minister, and also that it will deny gang members an income, undoubtably a desirable outcome! Cannabis use offences are victimless crimes, for which imprisonment is not really appropriate. Prisons should be reserved for those who constitute an ongoing danger to the public.
The Mental Illness Question
One thing that has happened both here and overseas in the last twenty years that undoubtably has had an effect on the crime statistics has been the deinstitutionalisation of the mentally ill or disturbed. It has not been entirely successful.
People who were formerly in institutions, which admittedly did leave a lot to be desired in many cases, were put out onto the streets and into shabby, poorly run boarding houses with little or no supervision or follow up. This was called Community Care. It is true that there were and are a lot of success stories as well, but there have been a lot of tragedies, for instance the recent Malcolm Beggs case. And the Police force end up picking up the pieces.
This is not the fault of the individuals concerned...
This is not the fault of the individuals concerned. It is the fault of previous governments and others who thought that Mental Health Care can be done on the cheap. Unfortunately it can't. If Mental Health care is to be done properly, and it must if tragic deaths are to be avoided, then it will be expensive, whether it is done in an institution or not. It is possible to deinstitutionalise most patients, but they must be properly cared for out in the community, not left to rot in some seedy old dump, mingling with alcoholics and criminals out on parole. And the taking of their medication should be closely supervised, in order to ensure that they are taking it, and that it is working and not causing serious side effects for the patient.
Although some people in this category are a danger to the public, and a few should always remain in secure institutions, most are harmless, and in fact are more likely to be victims than offenders. This particularly applies to those who have been left to fend for themselves in the community. Often they are vulnerable and alone, and end up having to share cheap, poor quality accomodation with violent offenders out on parole or bail. Because of the lack of supervision, they end up adding to the crime statistics, but as victims, not offenders.
patients have gone to a hospital and begged to be treated, only to be turned away...
What few institutions there are left seem to be doing a much better job than in the past, although there have been a few appalling lapses of judgement by doctors failing to listen to the families of patients, with fatal results, for instance the Jason Mackrell case. There have even even been instances where patients have gone to a hospital and begged to be treated, only to be turned away and end up offending, a ludicrous state of affairs which should never arisen.
Perhaps we need to also reconsider and perhaps widen the definition of mental illness, too. Certainly the extreme anger and aggressiveness shown by some offenders looks like a good case for medical intervention. They do not look like sane, fully functioning people. Certainly we should look at refining and expanding institutions like the Mason clinic, which despite some minor problems, seems to have been reasonably successful in preventing its patients from reoffending.