10 May 2007

Coke, Subway Dismissal and Poor Police Discretion

What do two shared cups of Diet Coke, Sue Bradford's flawed Anti-smacking Bill, CYFS (Child, Youth and Family Services), the Dunedin Police and a local Dunedin Subway (fast food) management team have in common? Before answering this conundrum, here's a hint. Consider the latest news:

Family-values opponents of Bradford's Anti-smacking Bill have expressed outrage and disbelief that Dunedin police exhibited such poor "discretion" prior to laying a criminal charge of "theft" against a full-time Subway worker, Ms Jackie Lang, for her "theft" of two cups of Diet Coke. Dunedin-based members of The Young Labour Party, who took to the streets in protest at the "unjust" treatment of Ms Lang by Subway, claimed that she only "shared" her coke with a friend and committed no action worthy of criminal prosecution. The protestors vitriolic performance was only directed at Subway, NOT the police. More astute commentators outside the Labour Party ranks, have accused the police of just buckling under Subway pressure when they laid the charge for an "offence" that almost every reasonable-minded New Zealanders would consider "to be so inconsequential that there is no public interest in proceeding with a prosecution". The police prosecuted Lang AFTER she had been notified by Subway of her dismissal and apparently after she indicated to Subway that she intended to take the matter to the Employment Court (over what she said was her unfair dismissal without warning - a response by Subway out of all proportions to her actions).

Conundrum Answer: "DISCRETION"

(1) Choosing largely sugar-free Diet Coke over normal Coke involves "discretion" and sharing it with a friend involves careful "discretion" (wipe the cup before sharing your potent disease with a friend!).

(2) Bradford's bill involves an affirmation that "discretion" must be applied by police prior to them laying charges against parents for "inconsequential... offences" (the term "police ... discretion" has been inserted into the bill for the purpose of supposedly protecting good parents from being prosecuted for lightly smacking their kids for the purpose of "correction").

(3) Subway management applied "discretion" - albeit a very poor fast-food flavoured variety, when they insisting that the police lay a charge of theft against Ms Lang, for her "theft" of two cups of Diet Coke with a retail value of $4.00. (Subway is a franchise and the outlets are individually owned).

(4) Dunedin police applied "discretion" - albeit a very poor tax-payer funded variety, when they laid a criminal charge against Ms Lang.

(5) CYFS has a well-documented track-record of making many discretionary judgments relating to children and young persons, within the context of domestic violence, that their numerous critics have described as "appalling", "ill-conceived" and "stupid". And yet CYFS 'expert' judgements by their largely unqualied social workers, significantly inform and impact police prior to the latter using their own "discretion" in choosing whether or not to lay charges involving domestic violence - including smacking complaints.

The Society believes that the Dunedin Subway case raises serious questions about Bradford's flawed Anti-Smacking Bill that Parliament is set to vote on next week. It puts the focus onto one of the key issues - the use and misuse of "POLICE DISCRETION" - applied before charges are laid under a reorked s. 59 of the Crimes Act (1961). Police already have a comprehensive list of guidelines issued by the Solitor-General's Office informing them on what matters must be considered before laying criminal charges following formal complaints, including those involving all forms of domestic violence.

Two of these consideratons have been affirmed in the latest amendment to the flawed Anti-Smacking Bill that has been approved by the vast majority of MPs which states:

[Clause 4]: "To avoid doubt it is affirmed that police have the discretion not to prosecute complaints against a parent of a child, or person in the place of a parent of a child, in relation to an offence involving the use of force against a child where the offence is considered to be so inconsequential that there is no public intrres in proceeding with a prosecution."

The nature of the evidence establishing a prima facie case that an offence(s) has taken place and the issue of "public interest" factor regarding proceeding with a prosecution, are all weighed up before a charge is laid by police, in all cases where PROPER police discretion is applied. Clause 4 is only a reminder to police and does not change Bradford's flawed anti-family bill - in that all use of force used by a parent on a child for correction is still constituted a criminal offence.

Despite the candy-coated addition embodied in clause 4 - to a bill that tens of thousands of New Zealanders consider a "poison pill" - the vast majority of New Zealanders opposing the bill (over 80%), do NOT have confidence that the police are always capable of applying proper discretion in the laying of charges, when it comes to domestic violence, let alone considering Subway complaints of "theft".

CYFS will have renewed leverage under Bradford's bill to ensure that parents who apply reasonable force to smack their kids for correction, or apply any other reasonable force for correction, will be prosecuted. If police can buckle under the strain of a Subway franchise holder they will also buckle under the force of the ideologues within CYFS and other child advocasy agencies to prosecute good parents. Bradford and her supporters are determined that Nanny State has the powers to reach into homes to force good parents to deal with children in a way that conforms to the State-sanctioned philosophy and secular values.

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