8 October 2008

Zero Tolerance?

> NZHerald: "Brian Rudman: Tough talk won't solve jails issue " > ACT: "Law and Order Policy"

I see ACT has proposed "zero tolerance for crime" and will ensure "[t]he law ... be enforced at all levels and penalties awarded enforced".

Calls for "zero tolerance" demonstrate a profound lack of understanding about how our laws are structured and work. Our laws are drafted on the basis that public actors will apply discretion about when they are enforced, ie our laws contemplate prosecutorial discretion. We can always seek to improve the application of that discretion, but there's no doubt that its existence is essential.

To illustrate with a simple example that most people will be able to personally relate to.

The Land Transport (Road User) Rule 2004 contains the following rules:

rule 3.1 General requirements about places controlled by traffic control devices (1) Subject to subclauses (2) and (3), if traffic at any place is controlled by a traffic control device, a person (including a pedestrian) using the road at that place must comply with the instructions given by that traffic control device that apply to them. ... rule 3.5 Traffic signals in form of standing or walking human figure (1) While a special signal for pedestrians indicates a flashing or steady red standing human figure symbol, pedestrians, riders of mobility devices, and riders of wheeled recreational devices who are using the footpath and facing the signal must not enter the roadway. (2) While a special signal for pedestrians indicates a green walking human figure symbol, pedestrians, riders of mobility devices, and riders of wheeled recreational devices may,— (a) if facing the signal, enter the roadway to cross towards the signal; and (b) if a “Pedestrians May Cross Diagonally During Cross” sign is installed, enter the roadway to cross towards the signal or to the diagonally opposite corner of the controlled area.

The Rule also contains the following rules:

rule 11.3 Using crossings, underpasses, or footbridges (1) A pedestrian or rider of a mobility device must not cross a roadway otherwise than on a pedestrian crossing or at a school crossing point, at an underpass, or on a footbridge when a pedestrian crossing or school crossing point, an underpass, or a footbridge is reasonably available to the pedestrian for that purpose within a distance of 20 m. (2) If pedestrian traffic on any part of any roadway is controlled by traffic signals, a pedestrian must not cross any other part of that roadway that is within 20 m of the part controlled by traffic signals. (3) This clause is subject to clause 11.4. rule 11.4 Crossing roadway (1) A pedestrian or rider of a mobility device or wheeled recreational device who crosses a roadway elsewhere than on a pedestrian crossing or at a school crossing point must, whenever possible, cross at right angles to the kerb or side of the roadway. (2) This clause does not apply at an intersection controlled by traffic signals if the pedestrian or rider is complying with a notice, sign, or marking maintained by the road controlling authority and indicating that such persons may or should cross otherwise than at right angles.

Section 10 of the Land Transport Act 1998 requires people to comply with the rules:

s 10 Road users and others to comply with ordinary rules and emergency rules A person must comply with the rules.

It is a criminal offence to contravene a rule:

s 40 Contravention of ordinary rules (1) A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time being prescribed as an offence by regulations made under section 167. (2) If a person is convicted of an offence referred to in subsection (1), the person is liable to the applicable penalty set out in the regulations.

The maximum penalty for breaching the rules are set out in s 3 and Schedule 1 of the Land Transport (Offences and Penalties) Regulations 1999:

reg 3 Summary offences and penalties (1) A breach of a provision specified in the first column of Schedule 1 is an offence against the Act. (2) A person who commits an offence referred to in subclause (1) is liable on summary conviction,— (a) in the case of an individual,— (i) to a fine not exceeding the amount specified in relation to that offence in the third column of Schedule1; or (ii) to a fine of the amount determined by the relevant scale set out in Schedule 1A (as referenced in the third column of Schedule 1). Schedule 1 ... Land Transport (Road User) Rule 2004 Provision; Brief description; Maximum penalty on summary conviction for individual ($) 3.5(1); Pedestrian, rider of mobility device, or rider of wheeled recreational device enters roadway when red human figure displayed; $10 11.3; Pedestrian/rider of mobility device fails to use pedestrian crossing, etc, within 20m; $35 11.4(1); Pedestrian/rider of mobility device/wheeled recreational device fails to cross road at right angle to roadway; $35

The effect of "zero tolerance" in the enforcement of crime is: - any person who dashes across the road at the lights on the corner of Willis Street and Lambton Quay while the red man (human figure) is showing must prosecuted and fined up $10 each and every time they do so. - any person who jay-walks on an angle across Lambton Quay must prosecuted and fined to $35 each and every time they do so; - any person who dashes across Lambton Quay beside, but not at, the lights across the road from Astoria must prosecuted and fined to $35 each and every time they do so.



Graeme Edgeler said...

It is a criminal offence to contravene a rule

It may be an offence, but it most certainly is not a crime - it cannot be proceeded against by way of indictment.

Dean Knight said...

Indeed. Various criminal legislation (Crimes Act, Summary Offences Act, Summary Proceedings Act) contain a legal (or technical?) definition of a "crime" (punishable on indictment), whereas "offence" carries a broader meaning anything for which someone can be punished for.

The language does not line up with ordinary usage. For example, all the offences (except one) in the Summary Offences Act are "offences" but not "crimes", despite the fact it includes many things we would regards as criminal offences:
- disorderly behaviour
- offensive behaviour
- wilful damage
- possession of burglary tools
- indecent exposure
- etc.

You can quibble about what ACT might have meant by the use of the word crime (they might have only meant serious offences) but it's unlikely it was exactly the same as the technical definition.

Whether my example is a "crime" only only an "offence" is by-the-bye though; the point about prosecutorial discretion remains!

Anonymous said...

This new-found enthusiasm for crime fighting might show a "profound lack of understanding about how our laws are structured and work," but I would say it more clearly shows a profound understanding of lowest common denominator politics.

After three years of dancing and bashing the very bashable Winston, Rodney has suddenly realised most people just don't care how good a dancer he is, and that bashing "criminals," not Winston, is the way to get party votes.

I follow politics fairly closely and had not realised Rodney was a major crime fighter, that it was central to what ACT stood for, I thought he was about Carrying on Roger and Ruth's good works.

Anonymous said...

I've seemed to lived an alright life without actually ever bothering to read an ACT party policy. I always thought their "zero tolerate for crime" policy referred exclusively to sentencing. So, yes, I've never thought about it the way you put forth. I guessed police discretion was too sophisticated for election year.

It's sad and desperate. I hoped the whole "law and order", "zero tolerance" thing would be dropped this election. Asking for utopia? But does anyone remember reading about Mel Smith’s Prime Ministerial Inquiry into Criminal Justice, which noted the whole criminal justice debate had become polarised, uninformed, superficial and irrational?

Nick K said...

Your point about prosecutorial discretion is valid considering John Key's legislative requirement of Police to show some in the anti-smacking law.

That is shocking.

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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