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Summary

Introduction

In Australia law, the term summary justice has a specific meaning, though it comes with negative connotations. The definition: court proceedings that are conducted with little or no formalities under common law.[1] That definition was different a few centuries ago, when summary justice meant ‘done without delay.’ Nowadays, summary justice simply means proceedings conducted in the lower magistrate courts, meaning legal proceedings that: involve less-serious crimes and possible punishments, are expedited with less complex court proceedings, without involving a jury.[2] Summary offenses, unlike indictable or Either-way offences, are cases that can only be handled in the lower courts. Indictable offences, on the other hand, are serious offenses that are handled in the higher Courts. While Either-way offences are cases where the defendant may request a trial by jury, a choice many, wrongly, assume is a citizen’s right in all court proceedings.

The term summary justice is also used to refer to vigilante justice, justice handed down by fellow citizens without recourse to the law[3]. This type of justice is typically frowned upon, but it some cases, especially when the law is not seen as effective by citizens, it can be popular with the public. However, citizens taking justice into their hands is considered disturbing by the government[4]. That is one of the reasons why a third form of summary justice, with recourse to the law but not the courts, has emerged in recent times. It is called pre-court summary justice.

During this, the Department of Public Prosecution and the police are the decision makers. When concerns about increased acts of vigilantism started attracting the media during the mid-1990s[5], the Liberal Party improved their standing with the citizenry by advocating for summary powers to  be given to law enforcement and other court officials in other to appease discontent citizens who no longer saw the system as effective due to increased anti-social behavior that was threatening many communities across the nation[6].

Summary Justice: A Cost-Benefit Analysis

Some say it is impossible to put a price tag on criminal justice[7]. However, all around the world, every system does just that since there rarely is an alternative. Police forces typically do not have enough resources to respond to every criminal act since they have to compete with other public services expenses like education and health — which also affect social justice. Therefore, priorities must be made when creating boundaries for which cases enter the criminal justice system. Within the criminal system itself, cases are treated differently, depending on how serious/important the case is.[8]

For any criminal justice system to achieve legitimacy, each citizen’s right to not be tricked, wrongly convicted, or treated in an undignified manner must be defended. However, it is also essential for a criminal justice system to protect the public from serious offenders that pose a threat to their safety, by effectively prosecuting and convicting them. The best way to achieve this is by sticking to the principle of proportionality of imposition[9], meaning the level of intervention by the system, process, and punishment should be proportional to the seriousness of the offence, where the term ‘seriousness’ refers to the culpability of the accused and the degree of the ham done to the public.

Sticking to this principle means that the more serious the offence, the greater the punishment, and the more safeguards there are to ensure justice is fairly dished out. Conversely, offences that involve little harm or culpability can be diverted from the system, or treated leniently if brought into the system, following a relatively non-stigmatic procedure.[10]

This principle is adhered to, to some degree by all criminal justice systems in advanced, democratic societies. Their court systems usually have two or more different levels. The higher levels typically involve lay magistrates or juries sitting next to panels of professional judges or a single professional judge for the determination of a defendant’s guilt and punishment.  The most serious cases are handled here, thus the most severe punishments are dished out. On the other hand, the lower courts have limited powers of punishment. These are often presided by lay magistrates sitting as a panel or a lone judge.[11] Also, most legal systems have pre-court or administrative criminal justice procedures allowing prosecution and law enforcement authorities to handle certain cases without involving the courts. These systems are typically used to deal with common minor offences that are straightforward and come with pecuniary punishments, a recorded warning, or the offender paying restitution. The severity of the crime and the likelihood of injustice determine which cases qualify for administrative criminal justice. Each level of the justice system has safeguards to prevent injustice. This review addresses whether pre-court and summary justice is appropriate, and if the safeguards are effective enough to protect citizens.

Conclusion

Regardless of one’s view on the growing proportion of offences and offenders handled in the pre-court system, it is clear from this review that we need more information and analysis. The it was pointed out this issue during his 2006-2007 annual report. Pointing out its introduction by the government in 2005[12] abandonment in 2006, and the statute to merge the five criminal justice incorporates into a single body, the Chief inspector called the outcome, which was right given the circumstances, ‘a lost opportunity.’

Obviously, it is not necessary to have a single criminal inspectorate before the increasing reach of the pre-court justice system is scrutinized. However, the fact the Department of Public Prosecution have raised questions about the lack of scrutiny, suggesting that the decision-making process can be overzealous and inconsistent, thus reducing the public’s confidence is the system, indicates just how widespread concerns about this developing branch of the government are, and not just among those involved in the process. There is certainly a legitimate need for a thorough review.

There are multiple issues that deserve attention. Firstly, from the published statistics released by the government, it is clear the expansion of the pre-court justice system has, as intended, displaced some court business. Most of these cases tend to be minor ones, but is that always the case? Are serious cases, that are more appropriate for the higher courts, being sent to pre-court? Some have suggested this is the case, meaning justice and preventative measures are being undermined as a result. There is yet to be detailed analysis done by the Department of Public Prosecution researches or criminal justice inspectorates to assess these issues, but the research is certainly due. The data that is currently available does not sufficiently answer these questions, but neither does it offer support to the contrary. For example, there has been an increase in the number of convictions for violent crimes in recent years. Furthermore, the argument that cases that used to be sent to the higher courts are now being handled by pre-court is not persuasive since that was always the government’s intention. As long as those types of cases remain minor and the outcome fair according to the principles discussed in the beginning of this report, there is no valid complaint here.

In conclusion, the state’s argument for expanding the reach and scope of pre-court sanctions is a reasonable one. It makes sense, in terms of justice and the economy, that courts are not overwhelmed with minor matters that can be more efficiently dealt with in pre-court if the accused: contests the matter, admits guilt, and has the alternative of a court trial.[13]  As long as these conditions are met, the judiciary and magistracy have no legitimate basis for complaint, especially since they have complained about minor cases being brought to them in the past. Expanding the criminal justice system as a result of the increased role of the pre-court system is also appropriate if it means offenders, who might have been able to avoid prosecution despite the fact their behavior hurts the general public prior to the expansion, are now being prosecuted and convicted. That seems to be the case so far.

 

Bibliography

Bishop, J Prosecution without Trial (1989) Sydney: Butterworths.

Hay, D and F. Snyder, (eds) Policing and Prosecution in Britain 1750-1850 Clarendon Press Oxford 1989.

King, H ‘Some Aspects of Police Administration in New South Wales, 1825-1851’ (1956) Royal Australian Historical Society:Journal and Proceedings Vol.42 Part 5 p 230.

Lusher Hon. Mr Justice E. A. Report of the Commission to Inquire into New South Wales Police Administration 1981

McGonigle, S ‘Public Accountability for Police Prosecutions’ Auckland University Law Review 163-183.

Tombs, J ‘Independent Prosecution systems in G, Zdenkowski (ed) The Criminal injustice

System (1987) Pluto Press pp.90-110.

Waller, K and D. Munroe Prosecuting Summary Offences: Options and Implications, Second Progress report on the evaluation of the DPP Summary prosecutions Pilot, NSW Premiers Department (1997).

Independent Commission Against Corruption Investigation into the Relationship Between Police and Criminals: Second Report April 1994.

 


[1] King, H ‘Some Aspects of Police Administration in New South Wales, 1825-1851’ (1956) Royal Australian Historical Society:Journal and Proceedings Vol.42 Part 5 p 230.

[2] Ibid, 245.

[3] Bishop, J Prosecution without Trial (1989) Sydney: Butterworths.

[4] JUSTICE, The prosecution Process in England and Wales 1970.

[5] Ibid

[6] Price v Ferris (1994) 74 Australian Criminal Reports 127

[7] Ibid.

[8] Tombs, J ‘Independent Prosecution systems in G, Zdenkowski (ed) The Criminal injustice

System (1987) Pluto Press pp.90-110.

[9] Waller, K and D. Munroe Prosecuting Summary Offences: Options and Implications, Second Progress report on the evaluation of the DPP Summary prosecutions Pilot, NSW Premiers Department (1997).

[10] Lusher Hon. Mr Justice E. A. Report of the Commission to Inquire into New South Wales Police Administration 1981

[11] Hay, D and F. Snyder, (eds) Policing and Prosecution in Britain 1750-1850 Clarendon Press Oxford 1989.

[12] McGonigle, S ‘Public Accountability for Police Prosecutions’ Auckland University Law Review 163-183.

[13] Independent Commission Against Corruption Investigation into the Relationship Between Police and Criminals: Second Report April 1994.


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