27 October 2005

Sound bites: zero-tolerance

http://www.nzherald.co.nz/section/story.cfm?c_id=1&ObjectID=10352222 Each time reference to "zero-tolerance" comes up, I wonder whether it's unlawful? In administrative law, there is a strong principle that a decision-maker cannot abdicate their discretion and adopt a rigid policy (see, for example, M v Syms, 5/12/1990 McGechan J & British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165). That seems to be what be what is proposed with zero-tolerance - the prosecutorial "discretion" is being undermined and effectively subverted. However, traditionally the courts have also been reluctant to review the exercise of such discretion - but this seems to be changing (see Polynesian Spa Ltd v Osborne [2005] NZAR 408). Perhaps there is some hope in the future that we might be able to knock over this egregious approach to law-enforcement?

1 comment:

Gooner said...

What, and have the Courts tell the Police who they can prosecute and who they can't? Never happen. The Police have rarely been open to judicial review. Forget it.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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