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Devlin name-suppression beat-up
By Steven | January 25, 2011
Russell Brown has a terrific post demonstrating yet again the way the media have lost the plot about name suppression.
He notes that no judge ever actually made a determination of the suppression application on the merits: an interim order was made by consent so that the application could be properly argued later. I suspect the application would have been declined, even though the offence was trivial. This was treatment that would have been available to anyone who indicated that they wanted to make a suppression application, not just wealthy celebrities.
I think the media may be missing what could be the most significant aspect of this case. Was Devlin’s behaviour really criminal? I guess we don’t know all the details of what happened, but from Devlin’s account, this is pretty inconsequential misbehaviour. I worry that the police are overusing low-end and nebulous offences like disorderly and offensive behaviour. Did you know that convictions for offences like this have rocketed from about 2000 per year in 1990 to more than 10,000 in recent years? Yes, there have also been more criminal convictions overall. But the use of these offences has risen from 1.2% of convictions to 4.5%.
I worry in particular about the use of these offences against protesters, but there’s plenty of evidence of their use as a catch-all for police who get irritated with someone who’s being stroppy.
Or are we four times more offensive and disorderly than we were 20 years ago?
Topics: Name suppression, Protest speech | 56 Comments »
56 Responses to “Devlin name-suppression beat-up”
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January 25th, 2011 at 2:09 pm
Hmmm… Interesting…
Its just a completely unsubstantiated theory but I wonder if the rise in the use of low-end offences coincided with the introduction of the Bill of Rights Act.
Post BORA people become much more aware of their rights and start exerting them more (in particular protesters). Police are held much more accountable for their actions and more restricted in law than they were previously (eg, no more quick slap around the back of the head with the baton for someone who wont do what they’re told).
Perhaps as a result of being restricted by law they then turn to the law as their new weapon of choice.
Of course, arguably, the police began to be more restricted post-1981, so perhaps that was the catalyst – or perhaps I’m just talking bollocks!
January 25th, 2011 at 2:18 pm
A tweak on that view: police feel they need to charge to cover their butts against abuse-of-power allegations. But perhaps that’s what you’re arguing.
An alternative possibility: this was about when diversion was introduced. This basically gives low-scale first-time offenders a get-out-of-jail-free card. Knowing of the likelihood of diversion, police may have been less worried about widening the sweep of their charging practices. Of course, that leaves defendants in the hole when on the second-time-around.
January 25th, 2011 at 3:12 pm
On that alternative it would imply with the introduction of diversion the police began to allow the justice system decide peoples guilt – rather than arbitrarily deciding themselves who was really being naughty.
That sounds to me like the rise in minor charges is actually a very good thing and consistent with our ideals for justice, something we should be pleased about.
January 25th, 2011 at 3:33 pm
Not quite sure about that. I think it’s important that the police exercise sensible discretion about charging marginal low-level cases. Just charging someone tends to put people through the ringer, often for no good reason. As you suggest, of course, the challenge is for this to be done with some level of reasonable consistency. I wonder whether the problems rests with the sort of ill-defined offences that invite wide and inconsistent application, and are therefore open to abuse.
January 25th, 2011 at 3:58 pm
Although isn’t the very presence of discretion in the criminal justice system an introduction of arbitrary power… which is generally not good. Giving reasonable consistency to discretion solves this but has to ultimately result in the power no longer being discretionary as it must then be bound by rules to ensure consistency.
Of course I’m being more than a bit facetious here as I actually agree with what you are saying, but its an interesting argument.
Ill defined offences are probably at the heart of the ‘problem’ (if there is actually a problem that is). That requires the use discretion for them to be practical and therefore removes certainty in what the law is.
If I go out and protest at something I should know exactly where the line is between lawful and unlawful. If its unclear the cops will decide based on what sort of mood they are in. I have a lot of sympathy for the cops who have to deal with idiots sometimes, but equal sympathy for the people who end up getting charged for behaviour that may be legal one day and illegal the next.
January 25th, 2011 at 10:12 pm
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January 26th, 2011 at 10:45 am
I wondered about the ‘why was this bloke actually arrested?’ aspect of this myself.
I wasn’t aware there had been such an explosion in low-end disorderly conduct offences but I wonder if an un-sinister reason might be a greater willingness of the Police to intervene in cases which in the past would have been dismissed as “just a domestic”?
January 26th, 2011 at 10:47 am
Savvy guess. But those offences mostly include a “public place” ingredient, so I don’t think that’s it.
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