Law & Justice

Respect the law

WHAT IS THE LAW ?

‘The law’ is the group of rules that have developed to makesure citizens know what their rights and responsibilities are.

This is to make sure people can live together safely and

peacefully.

WHAT IS’ JUSTICE’ ?

‘Justice’ means ‘fairness’, and it is the idea behind howlaws are put into force.

On one hand, ‘justice’ means that you have the right to be

protected and treated fairly by the law. If somebody does

something wrong to you or the people around you, it is fair

that that person should be stopped, and that they should have to pay a price for what they did.

‘Justice’ also means deciding carefully and fairly whether someone actually did something they are accused of.

If there is proof that somebody broke the law, it is fair that they should pay a price for it.

The Youth Justice System and Criminal Justice System have the power to decide what that price is, and make sure they pay it.

This might mean that if you were found guilty of a crime, the Justice System might take some of your time, your money, or even your freedom as a price for what you did.

But it would still be responsible for making sure you could live peacefully and safely during your punishment, and when your punishment was over.

Chinese man jailed in first sexual harassment

case under new law

July 17, 2008

The Guardian

A Chinese man has been jailed for five months for sexually harassing a subordinate – the first time anyone has been punished for the offence under new laws to protect women.

Complaints have been rising in China since laws banning harassment and domestic violence were introduced three years ago. Previously the small number of incidents that led to legal cases were resolved through civil law, according to an expert.

The man, a manager named as Liu, from Sichuan province, invited a new female colleague to “discuss work matters” in his office, but then told her he wanted to be her boyfriend, the Beijing News said, citing a local newspaper. When she turned him down, he held her by the neck and kissed her. Colleagues called the police after hearing her scream and struggle with him.

According to a 2005 survey reported in state media, only 21% of women said they had never faced sexual harassment. Another survey, by the Chinese Academy of Social Sciences, found that harassment was twice as prevalent in foreign or private enterprises as in state-owned enterprises, with 40% of private employees reporting problems.

Li Ying, deputy director of the Centre for Women’s Law and Legal Services at Peking University, said that complaints were rising as women became more aware of legal rights.

She added: “This is a global problem, but in China there is not enough approval, understanding and tolerance.

“People still wonder if there is a problem with the individual if you have been harassed, and they are not understanding or tolerant enough. So lots of people are afraid to openly talk about it. And many concerned parties choose to settle because they are afraid that their husbands or families cannot understand it.”

According to the state news agency Xinhua, only 10 sexual harassment cases were brought in the five years before the new law, and only one was successful.

Justice system on trial

By Mark Findlay

Posted Wed Jul 9, 2008

The reaction of the press to further incite communities concerned about the accused’s presence was confirmation of the judge’s concerns. (ABC News)

Not surprising – when it comes to criminal justice the tabloid press got it wrong again.

There were howls of outrage at last week’s district court decision in Queensland to permanently stay the prosecution of a well-known child molester. The court’s reasoning, in part, related to the savage condemnation surrounding the accused, and the judge’s determination that this chorus of incrimination and fear made it impossible for a jury constituted anywhere in that state to deliberate objectively.

Traditionally, when there are suggestions that a jury may be adversely influenced by pre-trial publicity, a judicial direction will satisfy the court that the trial could progress as fairly as might be expected. In this case the judge believed that there was nothing he could do to cure the adverse inference, strong jury directions not withstanding.

It was both the source and the nature of the frenzy surrounding the accused that so persuaded the court. And once the decision was announced, the reaction of the press to further incite communities concerned about the accused’s presence was confirmation of the judge’s concerns – just the sort of publicity which the court identified as destroying the fairness of possible jury trial.

The more significant issues in the decision, however, went largely unreported. Why couldn’t a judge sitting without a jury deal with this matter, such as is possible in other Australian jurisdictions? On what did the judge base his decision that it was in the public interest not to proceed with the prosecution?

On this matter the judge suggested that the prosecution may fail in any case, and even if a conviction ensued the sentence would not amount be more than the time the accused had already spent on remand. All crystal ball gazing, no matter how experienced the judge might be. And nothing much was said about the value or otherwise for retributive justice of prosecuting these charges in the community interest.

The irony here is that conviction rates in sexual assault, child sexual assault in particular, are conspicuously low. Media ranting prior to the trial of such accused now gives another route out of conviction – around the issue of fair jury trial. Even if the judge were to suppress the identity of the accused, the press has been vigorous in challenging any such orders in the name of free speech and public interest.

The battle over identity will have the unfortunate outcome of damaging jury partiality and consequent trial fairness. The jury, therefore, and the courts of review, cannot be held responsible for such eventualities when they are required to practice impartiality in such a charged and moralistic atmosphere where the media and the community have the accused guilty before day one of the trial.

I suggest that there is a larger constitutional issue which has received no column inches or news time since the decision. It is about the indicia of fair trial. Unlike the US with its constitutional amendments, the UK and its Human Rights Act, and Canada with its rights charter, Australia has no legislative definition of fair trial beyond passing reference to jury trial. All the courts here can refer to are some equivocal and often divided High Court comments on issues such as delayed trial and character bias.

If judges are to be assisted beyond loose notions of fairness and public interest to determine something as radical as a permanent stay over prosecuting alleged child molesters, then the time is right for much stronger constitutional frameworks for the trial justice the community should expect.

Walking free – why ‘less serious’ criminals

may be spared jail

09 July 2008

Yorkshire post

By Sarah Freeman

Something has to give.

The problem of prison overcrowding is well-documented. Many jails are at full capacity and with many seemingly operating a revolving door policy for those for whom offending has become a full-time job, there has been little light at the end of the tunnel.

Just last month it was revealed that the much-heralded Titan jails would not only be 400 spaces smaller than first thought, but are being designed to be overcrowded from the start.

In a bid to stem the growing prison population, at the start this year Justice Secretary Jack Straw announced he had a solution – in event of an emergency, inmates could be released early. It wasn’t exactly the answer many had been looking for. Since then, thousands of criminals have walked free weeks before their sentence should have expired, but it’s still not enough.

The Sentencing Advisory Panel yesterday launched a review into the way offenders are dealt with, and is recommending burglars and what they described as other “less serious” thieves should be spared time behind bars.

It isn’t yet clear what the panel means by “less serious”, but by favouring unpaid work and curfews, it is almost guaranteed that many will find themselves in the dock safe in the knowledge they will not lose their liberty.

And while the consultation paper insisted the law must not allow the court to take the feelings of victims or bereaved relatives into account when they demand a harsh sentence, it said judges may listen to them if they are calling for leniency.

Given that many already think the justice system favours offenders at the expense of victims, those leading the review know there will be uncomfortable times ahead.

“The aim is to create an overall ranking of offences according to seriousness,” says the preview to the report. “The panel has concluded that a presumption in favour of a community order is most likely to be appropriate in relation to the less serious offences of theft and dishonesty, burglary and motoring offences, where there may be clear advantages in requiring an offender to serve a sentence

in the community.

“The risk of an offender committing further, non-serious offences should not automatically lead to jail… there is a school of thought which suggests employed offenders should not be able to avoid jail on the grounds that they would lose their jobs, because this would work against those who are already disadvantaged by being unemployed.”

While the SAP’s chairman, Professor Andrew Ashworth, added that the time was right for “a major debate on the general principles of sentencing”, given the tone of the consultation paper, many believe the result is both a foregone conclusion and further evidence of a legal system so worried of hurting someone’s human rights it would rather let criminals walk free.

“There is currently a great deal of media and public interest in criminal offending and the sentences imposed by the courts,” added Prof Ashworth. “As a result, there are significant pressures on sentences to ensure that justice is done and seen to be done.”

Given the strength of feeling, the SAP may live to regret also launching a research programme to ask the public for their views.

A document on the SAP’s website says research will look at:

The extent to which costs and effectiveness of prison or community sentences should play a role in deciding a sentence.

Which characteristics of offending should lead to jail, or to a community order.

The role of mitigating and aggravating factors in a crime.

“The panel’s approach is firmly grounded on principles of fairness and proportionality,” said Prof Ashworth.

“Social attitudes to criminality and justice change over time and we need to make sure we have an up-to-date understanding of public opinion.”

There will no doubt be no shortage of people willing to tell the SAP exactly what they think, whether they are listened to remains to be seen.