RECOMMENDATION 9:
COMMENTARY ON RECOMMENDATION 9
7.1 This was one of the “tentative proposals for reform” contained in the Commission’s Discussion Paper 16 on Police Powers of Arrest and Detention,1 and was perhaps the least controversial. Every submission which considered the matter at all supported the proposal, including those from the New South Wales Commissioner of Police and other law enforcement agencies. Time spent in police custody, even where there is lawful authority for the detention, amounts to a deprivation of liberty, and it makes perfect sense that this be taken into account by the court which pronounces sentence upon the conviction of an offender. In the UK, the Police and Criminal Evidence Act 1984 (PACE) contains a provision to the same effect.2 As a matter of practice this is also the case with persons who were not freed on bail and were remanded into custody pending trial. The provision is not likely to have a major effect upon sentence, given that the authorised periods of detention are relatively short under the proposed regime; however, there is no reason why person involved should not have whatever benefit is available. It is not intended that time spent in detention should only be taken into account in determining the length of a sentence of imprisonment; it may be that a sentencing court, in an appropriate case, would prefer to hand down a non-custodial sentence on the basis that the offender has already served a period in custody.
RECOMMENDATION 10:
Need for Follow-up Empirical Study of Custody Records
One year after the coming into force of any legislation which replaces the common law in respect of police detention for the purpose of investigation (whether or not based on the recommendations contained in this Report), the Law Reform Commission shall conduct an empirical study, including but not limited to a survey of police custody records, to consider the fairness and operational effectiveness of the new system and to report its findings, which may include recommendations for changes to the system. Specific regard shall be had to the length of custodial detention for investigation, any mechanisms for extending the initial period of detention, and the effective provision of safeguards for persons in police custody. Sufficient funding should be made available to the Commission to complete the study in a timely fashion.
COMMENTARY ON RECOMMENDATION 10
7.2 The Commission was struck by the lack of empirical data available to us on police practices in New South Wales. The submissions contained much legal analysis of the common law cases, historical references, strongly-held opinion, discussions of the legal regimes in operation inter-state and overseas, and assertion about the wisdom of pursuing one approach or another. References to empirical fact were almost invariably vague or general, on the order of “in our experience...” or “we understand that...”.
7.3 It is not the case that the relevant data exist somewhere but have not yet been properly collated or interpreted. The Commission was officially advised by senior police officers3 that the basic information about arrest and detention in police custody is not routinely or centrally collected. There may be some useful information available in the computerised on-line charging systems at the larger police stations and the charge books maintained at smaller police stations, but much of it is unreliable, at least from the point of view of statistical significance, since the data were not entered with the intent of precision or subsequent analysis. More importantly, for the Commission’s purposes, the recording in the charge books is not standardised or complete. It is often impossible to determine whether an initial entry relates to the time of arrest, or the time of arrival at the station, or the time when the person was first attended to. There are key gaps in entries, including the time of charge or release, and whether the person was able to meet bail conditions.
7.4 In other words, the basic data simply do not exist. As remarked in Chapter 1, we believe that no system which dealt with property or property rights would have been allowed to remain so informal and, literally, unaccountable, for so long.
7.5 The essence of the Commission’s recommendations is that the informal practices and procedures regarding criminal investigation be replaced with a formal system regulated under law. Record-keeping is at the core, with custody records maintained which enable proper analysis of the new system. It will then be possible to know, for example, the numbers of persons who are detained after arrest; the average length of detention; the extent of utilisation of the various investigative procedures; the number of confessions produced; the compliance with safeguard requirements, such as the administration of cautions and the permitting of communications with friends, relatives and legal advisers; the take-up rates by detainees for such safeguards, and so on. It will also be possible to make useful correlations; for example: the presence of lawyers with the exercise of the right to silence; the length of detention with the seriousness or other circumstances of the offence; the practical availability of safeguards with the location of the police station; and the take-up of rights with plea and verdict.
7.6 The lack of existing data has meant that the Commission’s recommendations are of necessity based on its general appraisal of the real nature of policing in New South Wales, drawn from the submissions received, the experience of the Commissioners and their consultants and staff, and extensive consultations with the main institutional actors - police, lawyers, judicial officers and court administrators. Monitoring of the new system is necessary to determine whether we have “got it right”, and to see that it stays right. Even a well-designed system, as we believe this be, will disclose some bugs in operation, and require some adjustment. Any further debate on police powers and practices in New South Wales should now be based on facts and figures, rather than on opinion and conjecture.
7.7 Even if we could be more certain of the factual basis of the proposed system, we would still urge the need for careful, periodic review. As a general matter, the interest of the Commission should not end with its report to the Attorney General, but rather it should be involved in monitoring the effectiveness of the program which is eventually implemented as a result. In this particular case, the Commission recommends that it be empowered to review any new system of criminal investigation which is established. This review could be conducted by the Commission alone, or in conjunction with another body - perhaps another public agency, a university research institute, or private consultants.
7.8 It is unlikely that extensive funding would be necessary to conduct the review, which would probably consist of an empirical analysis of a significant sample of custody records, as well as interviews with persons involved in the operation of the new system (eg, police, lawyers, magistrates). However, the substantial decrease in the Commission’s funding in recent years may make it impossible for the work to be done without some additional resources. These extra resources could be in the form of a special government allocation, the secondment of public service research staff, or a grant obtained from a foundation or research council.
FOOTNOTES
1. New South Wales Law Reform Commission, Police Powers of Arrest and Detention (Discussion Paper 16, 1987) 139.
2. Section 49. See also the Criminal Justice Act 1967 (UK), s67, and the Prevention of Terrorism (Temporary Provisions) Act 1984 (UK), s12.
3. Letter to the Commission of 11 June 1987 from the NSW Police Policy and Planning Unit.
