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15 responses to “Ne bis in idem”

  1. Hugo

    We should be conscious of a distinction between imposing detention for punitive purposes (ie, a sentence for past crimes) at the end of a trial, and placing a person in detention for preventive reasons through some different process. The plea of autrefois convict (the applicable common law rule of double jeopardy, as opposed to the Roman/civil law doctrine of ne bis in idem) certainly applies where a person is placed on trial again for the same crime. The SMH article suggests that new trials are not what is proposed, however. The parallel drawn with existing preventive detention laws for serious sexual offenders instead brings to mind some sort of administrative process with judicial review, not a second trial. The continued detention (the government would argue, quite plausibly) serves the purpose of community protection, not sentencing for past crimes.

    It is not as clear as this posting suggests that the detention in this case would violate Article 9 of the ICCPR, which provides a right to liberty and freedom from arbitrary arrest and detention. Importantly, it states that persons shall not be deprived of their liberty except “in accordance with such procedure as are established by law”. There aren’t all that many details in the SMH story. However, again building on the parallel drawn with the regime of serious sexual offenders, one would expect to see a statutory regime drawn up under which an official (probably a Minister or the Governor) would, if there is a reasonable basis for apprehending that the prisoner will commit further serious crimes if released, have the power to impose a term of preventive detention. There would likely be scope for judicial review of exercises of this power. This process would, on its face, be “in accordance with law”. Now, if the scheme were set up to grant a very broad discretion (without setting some sort of standard of apprehension of further crimes, for example), or if the power were abused and the judicial review hollowed out, the scheme would be colourable as “arbitrary” and therefore a breach of Art. 9, despite the fact that it is contained in a law and the law is strictly followed.

    But, since we don’t yet know the details, we shouldn’t yet conclude that the scheme unquestionably violates the ICCPR. Nor, for the reasons given in the first paragraph, can we necessarily characterise it as violating double jeopardy or a rule against retroactive penalties.

    The merits of the scheme and the politics involved are a different matter, of course.

  2. smith

    No, Your right, its just indefinite detention

  3. Geoff Honnor

    What’s been announced is an audit of current sentences, the results of which may result in extensions being considered. Given that we’re now less than 1 year away from the next NSW election, I think it’s safe to assume that it’s the opening bid in the Laura Norder campaign and there’s a 95% chance that it won’t happen.

  4. Idiot/Savant

    I suggest you read the BORA report [PDF] on NZ’s system (sadly implemented) for extended supervision of sex offenders, which goes over this issue. That merely imposes strong parole and possible home detention rather than full imprisonment; it was found to be a second punishment because extended supervision was clearly within the criminal justice system and flowed from the original conviction, rather than being the result of a completely seperate process. A subsequent proposal [PDF] to allow permanent electronically monitored house arrest was found to constitute arbitrary detention because it “allows for long term detention without charge or trial”.

    (The NZ Parliament sadly passed both of these laws – politicians are the same the world over, and willing to ignore fundamental human rights for votes).

    The NSW proposal goes much further than this, and involves keeping people in prison for an extended period based solely on their original conviction. It is very difficult to see how it could pass muster.

  5. Mercurius

    It’s just a Laura Norder stunt. Best ignored.

    Still, it’s fitting that NSW proposes such treatment. Once our gaols become over-full with indefinitely detained criminals, we can transport the excess to an island in the Antipodes that nobody else wants (Nauru?), and commence the floggings.

    It’s strange how many nations grow up to re-create in perverse fashion the historical circumstance of their own birth pangs.

  6. Fran Barlow

    Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past. The tradition of all dead generations weighs like a nightmare on the brains of the living. And just as they seem to be occupied with revolutionizing themselves and things, creating something that did not exist before, precisely in such epochs of revolutionary crisis they anxiously conjure up the spirits of the past to their service, borrowing from them names, battle slogans, and costumes in order to present this new scene in world history in time-honored disguise and borrowed language. [...] the beginner who has learned a new language always translates it back into his mother tongue, but he assimilates the spirit of the new language and expresses himself freely in it only when he moves in it without recalling the old and when he forgets his native tongue.

    Not quite what Marx was on about in the Brumaire, but nevertheless, apt, for just the opposite reason …

  7. Hugo

    Thanks for the link to the New Zealand reports – very interesting, and a noteworthy contrast with Australia that they are prepared by the Attorney General.

    I certainly don’t think that the legislation is clearly consistent with the ICCPR, just that it’s in a grey area. This is one reason why political agitation, invoking general principles of justice and, as you say, the specific purpose of criminal sentencing and rehabilitation, are just as important if not more important than claims that this new measure violates a higher source of law like the ICCPR. The fact that the ICCPR and most constitutional protections for human rights and personal liberty would allow for some degree of preventive detention (eg for quarantine) means that the state would start its legal case with the tactical opportunity of drawing some fruitful analogies (even if they are, on close scrutiny, questionable analogies). The judgment as to whether there is inconsistency with higher law then has the appearance of requiring some degree of discretion or balancing by the deciding court, and the legal picture gets blurred.

    The way that the law can prove to be rather contradictory and unhelpful in the way I suggest is illustrated by one point noted in the first report (by Margaret Wilson). She writes that one indicator of the measures falling within the criminal justice and penal system (therefore making it correct to characterise the measures as punitive) is that the institution that makes the order is the court that originally sentenced the offender (para 11.1). By inference, this point also means that if the order is made instead by an official, then subject to judicial review, the order would not be associated with the original sentence in the same way and this, paradoxically, would weaken to some extent the case for inconsistency with the Bill of Rights under this particular constitutional limitation.

    Further, a point of difference with the NZ law is that the NSW Crimes (Serious Sex Offenders) Act 2006 requires an application by the State (not, as in New Zealand, the correctional authorities) to the Supreme Court, not to the sentencing court. This is, frankly, really a matter of form, not substance, but on the reasoning of the NZ Attorney General, it assumes some real significance.

  8. Ken Lovell

    Today’s stunt is tomorrow’s strong law to protect the community. Anybody who doubts that really hasn’t been paying attention to the recent rapid erosion of centuries-old individual rights in the name of protecting us from terrorism, asylum-seekers, pornography etc.

    Moreover the majority of our fellow-citizens seem to delight in this kind of authoritarian government, which I suppose is natural when life is all about getting and keeping something for yourself and bugger everyone else.

  9. wilful

    The article says clearly that the process is framed within rehabilitation/acknowledgement of crimes. This is effectively making thought-crimes illegal. Often enough, people who show no remorse receive higher sentences in the first place. Also, there’s no indication that the extensions would be determined by a judge. So would the Prison authorities be in charge of this?

    BTW, does NSW have privatised gaols?

    Rob Hulls in Victoria would, I hope, have absolutely no truck with this sort of thing, and it would have to explain why it was OK to breach the Charter of Human Rights and Responsibilities if/when challenged.

  10. Paul Burns

    Funny. I didn’t hear much loud screaming about human rights when Howard introduced his anti-terror laws either. One thing you can guarantee about politicians if they have to screw you so they can impose more power over you, they will. (Mind you, I have no problems with violent people being locked up for a very long time, men or women.

  11. Fran Barlow

    Nor I Paul, but the this is here the laura norder auction naturally leads. Mainstream politicians (especially in they are in opposition) always believe in “tougher sentences”. This apparently appealing slogan is deeply flawed because everything short of the maximum sentence can always be bid up. Indeed, why stop at life? Why not give really serious offenders 1000-year sentences?

    If people put at the front of their minds the sheer cost impacts of locking someone up for a day, a month and whatever, they might think twice about how long and under what level of security every offender ought to be confined. Unless a tougher sentence really does add to the protection of the community at a rate commensurate with the cost for doing that to everyone who so offends, then it makes little sense.

    Drunk drivers, for example, are very dangerous. Should one lock them up to protect the community? Arguably so, where other less coercive methods (enforced community service, removal of vehicle and licence, daily reporting to police with required sobriety) have been tried and failed.

    Let’s say that someone has murdered or raped someone. Clearly, they need to be locked up because they pose an unacceptably high risk of killing or raping. Yet suppose after 20 years in gaol, they no longer pose a risk, possibly because they are physically or mentally enfeebled. Should they still be in gaol? I’d say not. Really, the primary objective of a sentence ought to be to protect the community from harm, followed next by deterrence of other putative offenders and then rehabilitation and restitution where that is possible. It’s very doubtful that when criminals are considering whether to commit crimes, the fact that they are only going to do most of 20 years in maximum security rather than 40 years will sway their judgement. Their prospect of getting caught is likely to be more salient in their own minds. Sadly, large numbers of criminals overestimate their ability to commit serious crimes and elude detection, and everybody loses. Dunning Kruger rules again.

    One of the more ludicrous aspects of this discussion is this. If some politician said — “you know what — we are going to pick out this state’s most undervalued contributors to the welfare of the public and pay them exactly the cost of keeping criminals in gaol* cause they’re such great assets to us all” there would be an outcry about government waste and corruption.

    *Something like 2/3 of NSW prisoners are short timers – less than 6 months and it costs about $200 per day to house them. Maximum security prisoners like Ivan Milat cost a lot more of course — in 2004 it was estimated that confining him cost more than $300,000 per annum.

  12. armagny

    “Rob Hulls in Victoria would, I hope, have absolutely no truck with this sort of thing, and it would have to explain why it was OK to breach the Charter of Human Rights and Responsibilities if/when challenged”

    Hmm, you might want to read Momcilovic 2010, C of Appeal. See also the post release serious sex offenders’ regime.

    Yes the law and order voter aspect to the laws being introduced is concerning. It’s equally concerning that the state would relinquish control of a person who is highly violent as they pass back into the community. Keeping them in gaol does seem wrong, but perhaps the old focus on serving time really doesn’t address a serious risk to a community.

    I think the Victorian serious sex offender model is probably a good compromise, close supervision in cases of significant risk.

  13. Fran Barlow

    Quick question to mods:

    Why are some (but not all) of my posts going into moderation? A post above contains no links nor any words on the deprectaed list, as far as I can tell. If there’s something more subtle triggering moderation, I’d like to know what it is so I can effect a workaround.

  14. Mercurius

    No idea, Fran. The spaminator has a mind of its own. It’s vaguely possible that brevity is the soul of not getting auto-modded.

  15. Andrew E

    … persons shall not be deprived of their liberty except “in accordance with such procedure as are established by law”.

    All that will happen there is that serious crimes will attract a compulsory sentence of “detention management”, which will be subject to ongoing management and be as long or as short as parole/counsellors/others acting in the sort of haphazard concert for which the justice system is renowned, see fit.