Flannel

It will be interesting to see the response to Geordie Guy's FOI request to the Office of the Australian Information Commissioner regarding the OAIC statement - or non-statement - about PRISM -

On Wednesday the 12th of June 2013 the privacy commissioner Timothy Pilgrim made a statement titled "US surveillance program — Statement from Australian Privacy Commissioner, Timothy Pilgrim". In that statement, the commissioner makes a number of comments regarding privacy in Australia and recent reports of widespread warrantless surveillance in the United States.

I am writing to request under the act, documents be disclosed that meet the following descriptions.

• Drafts of this statement, as well as any internal correspondence regarding its content 

• Requests either from the OAIC or other government departments or bodies that the OAIC and/or the privacy commissioner make such a public statement or any statement regarding media reports of US surveillance revelations 

• Legal advice or other general advice that the OAIC has sought or received unsolicited, that concern the legal status or legal implications of recent US surveillance revelations 

• Any documents which provide further detail regarding the aforementioned surveillance programs

The Privacy Commissioner's statement read -

Reports on the surveillance of the communications and online activity of citizens by US intelligence agencies have raised a number of questions, including what this means for the privacy of individuals.

Privacy is a fundamental human right, recognised in international law and protected under Australian laws such as the federal Privacy Act and telecommunications laws. However, the right to privacy is not absolute – it must be balanced against other important rights and ideals, such as freedom of expression and national security.

In Australia, the federal Privacy Act and telecommunications laws recognise this and include a number of exemptions and exceptions for intelligence and law enforcement agencies and their activities. For example, the Privacy Act includes limited exceptions that allow government agencies and private sector organisations covered by the Act to use and disclose personal information for the enforcement of criminal laws, or where the use or disclosure is required or authorised by or under Australian law.

The Privacy Act can extend to an act or practice that occurs outside Australia in certain circumstances. However, the Act also provides that an act or practice of an organisation done outside Australia does not breach the Privacy Act if it is required by an overseas law. Further, the Privacy Act will generally not cover the acts and practices of overseas government agencies.

Background

Article 17 of the International Covenant on Civil and Political Rights establishes privacy as a human right.

MOOCs

Noting Ian Bogost's thoughtful contribution in the LA Review of Books to a feature on MOOCs -

MOOCs are often discussed as an educational technology, as a new way of teaching. This is true to some extent, even if these courses look far less “disruptive” when understood in relation to the long tradition of online and distance learning. Will Oremus has offered a convincing (and deflationary) account of MOOCs’ potential as course material, suggesting that they are best understood as a replacement for traditional textbooks.

Even if MOOCs do sometimes function as courses (or as textbooks), a minority of their effects arises from their status as educational experiences. Other, less obvious aspects of MOOCs exert far more influence on contemporary life. Here are some different but important ways of understanding what MOOCs are and what they do.

MOOCs are a type of marketing. They allow academic institutions to signal that they are with-it and progressive, in tune with the contemporary technological climate. They make an institution’s administration appear to be doing novel work on “the future of higher education,” and they offer professors an opportunity to reach a large number of students who might also spread their ideas, buy their books, or otherwise publicize their professional practice. Less cynically, MOOCs can help deliver a taste of on-campus offerings to future students, parents, or the general public — although this latter function is hardly novel; iTunes U has distributed free lectures for years.

MOOCs are a financial policy for higher education. They exemplify what Naomi Klein has called “disaster capitalism”: policy guilefully initiated in the wake of upheaval. The need to teach more students with fewer resources is a complex situation. It’s partly caused by hubris, especially the blind search for higher institutional status through research programs, and it’s exacerbated by the tax base crises of the ongoing and seemingly permanent Great Recession. MOOCs offer the next logical step in this process of “cost containment.” But those who would call current funding models “unviable” and offer MOOCs as a convenient alternative fail to admit that the very need for an alternative presumes that we want to abandon public education in favor of a corporate-owned infrastructure in the first place.

MOOCs are an academic labor policy. As a consequence of the financial policy just described, MOOCs are amplifying the precarity long experienced by adjuncts and graduate student assistants, and helping to extend that precarity to the professoriate. MOOCs encourage an ad-hoc “freelancing” work regime among tenured faculty, many of whom will find the financial incentives for MOOC creation and deployment difficult to resist. This is particularly true of public institution faculty who have gone years without raises. Many institutions offer tens of thousands of dollars of direct compensation for MOOC development and teaching. And, in some cases, MOOCs offer direct access to student tuition and direct competition among faculty for those new resources, extending the “entrepreneurial” institutional politics of professional schools (and corporate life more generally) to all disciplines.

MOOCs are speculative financial instruments. The purpose of an educational institution is to educate, but the purpose of a startup is to convert itself into a financial instrument. The two major MOOC providers, Udacity and Coursera, are venture capital-funded startups, and therefore they are beholden to high leverage, rapid growth with an interest in a fast flip to a larger technology company or the financial market. The concepts of “disruption” and “innovation,” so commonly applied to MOOCs, come from the world of business. As for EdX, the MOOC consortium started by Harvard and MIT, it’s a nonprofit operating under the logic of speculation rather than as a public service. If anything, it will help the for-profits succeed even more by evangelizing their vision as compatible with elite nonprofit educational ideals.

MOOCs are an expression of Silicon Valley values. Today’s business practices privilege the accrual of value in the hands of a small number of network operators. Anything unable to be maximally leveraged isn’t worth doing. MOOCs subscribe to leverage as a primary value proposition (“massiveness”), implicitly rejecting the premise that some things benefit from “inefficiency.” MOOCs also evangelize the Silicon Valley ideology of technological salvation that Evgeny Morozov has called “solutionism,” and David Golumbia “computationalism.” Specifically MOOC researchers-turned-entrepreneurs Daphne Koller and Sebastian Thrun assume that AI techniques can “solve” the problems of education through computational automation.

MOOCs are a kind of entertainment media. We are living in an age of para-educationalism: TED Talks, “big idea” books, and the professional lecture circuit have reconfigured the place of ideas (of a certain kind) in the media mainstream. Flattery, attention, the appeal of celebrity, the aspiration to become a member of a certain community, and other triumphs of personality have become the currency of thinking, even as anti-intellectualism remains ascendant. MOOCs buttress this situation, one in which the professor is meant to become an entertainer more than an educator or a researcher. The fact that MOOC proponents have even toyed with the idea of hiring actors to present video lectures only underscores the degree to which MOOCs aspire to reinvent education as entertainment.

MOOCs are also a way of employing the MOOCatariat, in particular engineers and educational administrators who aren't particularly good at - or even in touch with - teaching but know that there are opportunities in telling teachers what to do.

Lookalikes in UK Law

The UK Intellectual Property Office has released a report [PDF] on lookalikes.

The summary is as follows -

The issue of lookalikes is one that has been on the policy and business agenda for at least two decades. Well-known brands, and brand-owners’ groups, have long advocated specific and adequate protection against lookalikes under United Kingdom (UK) law, particularly in the context of possible business-to-business harm. More recently, the issue has also become more prominent on the agenda of the European Union (EU) both in the context of so-called “free-riding” in relation to trade mark law, and with respect to possible unfair commercial practices. 

This report uses a working definition of a lookalike in the following terms: a lookalike product is a product sold by a third party which looks similar to a manufacturer brand owner’s product and, by reason of that similarity, consumers perceive the lookalike to share a greater number of features with the manufacturer brand owner than would be expected simply because the products are in the same product category. This report further defines own brand in this report as a product sold under a retailer’s brand name (whether or not is it also a lookalike), and a manufacturer brand as a brand controlled by an entity that manufactures the products itself, rather than applying its own branding to something manufactured by a third party. 

The literature review  

The literature suggests that innovation leads to growth in consumer markets. Further, brands provide consumer security as brands need to retain consistent quality to survive. The literature also indicates that large brand owners, who manufacture and design their products, innovate more than non-manufacture brands rivals. 

The existing literature suggests that own brand products have an evolutionary life cycle with lookalikes existing in the later stages of that cycle. It also indicates that own brands are more successful in low innovation product categories. Accordingly, incremental innovation by manufacturer brand owners makes it more difficult for own brand to penetrate the market. This in turn might be a driver for manufacturers to innovate. 

There is little empirical evidence on whether own brand affects innovation. Further, in the food sector it has been found that the existence of own brand has had no effect in Europe (except in Spain). Nevertheless, it has been suggested that lost sales caused by own brand would lead to less money being spent by manufacturers on research and development 

The literature postulates certain types of business harm which might be caused by lookalikes. This includes lowering the level of innovation, wasted rents on packaging changes, brand followers being pushed out of the market place and an adverse effect on advertising. In addition, it suggests that there is a need to protect the investment in market research to obtain new consumer insights. 

The existing consumer evidence suggests that in the absence of the brand leader, products that look similar to that leader are better received by consumers than those that look distinct. In addition, when a lookalike is on the shelf at the same time as the brand leader the lookalike might be used for comparison purposes. Further, the presence of lookalikes will reduce a consumer’s reaction time in selecting a product and may (under time pressure and outside the normal shop environment) increase the chance of mistaken selection. 8. There have been numerous consumer surveys on the issue of similar packaging for fast-moving consumer goods. These studies demonstrate a high level of consumers making mistaken purchases. The reasons for these mistakes include similar packaging such as cues of colour, shape and size. Additionally shelf position is reported as a factor. 

Previous consumer surveys show that consumers have a perception that own brand goods have a common origin with manufacturer brand owner products (irrespective of packaging) and when packaging is similar there is an increased perception of common origin. Additionally, those surveys suggest that consumer perceptions of own brand are generally good with at least a quarter (and possibly three-quarters) of consumers perceiving own brand to be as good as the manufacturer brand owner’s products. 

Research findings 

The present research was divided into three parts. The first part comprises interviews with stakeholders in the fast-moving consumer goods market. The second part of the research comprises two consumer surveys: one considering whether there is a lookalike effect; and the second addressing the advantages and disadvantages perceived by consumers across three jurisdictions. The final part of the research involved the analysis of sales figures for certain brand leading products to see the impact, if any, of a lookalike entering the market. 

The study found a small, but statistically significant, lookalike effect leading consumers to believe that similar-looking products have similar product characteristics and similar origin. The effect is greater, however, in those consumers who do not use products within a particular product category (and so the effect is lower in relation to the persons most likely to buy the product). This is consistent with the existing literature which suggests consumers are confused when packaging is similar. 

It was found that that a high number of UK households reported that the accidental purchase of lookalikes disadvantages them very much (1.68 million) or somewhat (9.92 million). Conversely, a substantial number of households reported such a purchase to advantage them very much (0.99 million) or somewhat (8.99 million). This suggests that some consumers suffer detriment from the mistaken purchase whilst others find it to be a positive experience. However, the research did not investigate why some consumers perceived the purchase to be a good or bad experience. 

Impact of Lookalikes 

The study revealed that a substantial majority of consumers had deliberately purchased a lookalike and, of those consumers, most of them found the experience to be advantageous. The research did not analyse why some consumers perceived the purchase to be advantageous. 

The research found that there is a fine line between confusing packaging and using generic cues to provide useful signals to consumers. 

The study found limited evidence to support the suggestion that lookalikes spur manufacturer brand owners to innovate as it is the best way to maintain the price differential. Such an effect, however, might disappear in markets where market share (more precisely, sales) has declined so much that the cost of research cannot be recovered. 16. It was not found that lookalike products directly cause brand manufacturers to make additional (and wasteful) changes to their packaging. 

The literature suggested that lookalike packaging causes a greater loss of sales (or market share) than distinctive competitors. However, in interviews with the research team only one of the manufacturer brand owners reported this finding; the others gave a mixed picture. 

The statistical analysis of the sales figures showed that in a very limited number of product categories, an association was found between a reduction in the sales of the brand leader and an increase in the sales of the lookalike. This could have been caused by numerous factors, one of which is the similarity of the packaging (the lookalike effect at work). Such associations did not appear to relate to consumers’ relative perception of packaging similarity or common production origin and also did not generally appear to exist within the particular supermarket selling the own brand. The evidence is therefore inadequate to determine whether lookalike packaging generally diverts sales or if the effect of that packaging is negligible. 

In relation to advertising spend, there were differing responses by manufacturer brand owners when a lookalike enters the market. Accordingly, no meaningful conclusions can be drawn as to the effect on advertising spend when a lookalike enters the market. 

The discussions with manufacturer brand owners, reviews of the literature and the surveys suggest that if there were to be a statutory definition of a lookalike it could be: “goods which by virtue of their name, shape, colour, packaging or labelling or any combination thereof, are similar in overall appearance to the goods; but excluding any of those things where they are descriptive, functional or commonplace.” 

Manufacturer brand owners reported that lookalikes enabled competitors and retailers to take unfair advantage of the manufacturer brand owner’s research into consumer insights and packaging design. 

Legal analysis 

In none of the three jurisdictions examined - the UK, Germany and the United States – was the legal position of lookalikes particularly clear. Nevertheless, at the interim stage, there is a perception that a claimant is more likely to be successful in the favourable German forum than in either of the other two countries. 

It is probable that the prevention of certain lookalikes is within the scope of the Unfair Commercial Practices Directive (2005/29/EC). Under this assumption, the United Kingdom may not be free to legislate to further prevent lookalikes save in business-to- business transactions. However, it would also mean that certain lookalikes are already unlawful under the Consumer Protection from Unfair Trading Regulations 2008. 24. Accordingly, if there is a restriction on legislation in relation to lookalikes, a private right of action under the Consumer Protection from Trading Regulations 2008 would be permitted under the Unfair Commercial Practices Directive.

CoE response to PRISM

The Council of Europe (CoE) - the international entity that has driven Australian proposals for mandatory electronic data retention through the global Cybercrime Convention - has responded to the furore over PRISM.

Its media release states that the Council

today alerted its 47 member states to the risks of digital tracking and other surveillance technologies for human rights, the rule of law and democracy, and recalled the need to ensure their legitimate use. 

In a Declaration issued to governments, the Committee of Ministers say that legislation allowing for overly broad surveillance of citizens can challenge their privacy and have a chilling effect on their freedom of expression and the freedom of the media.

The Committee recall that tracking and surveillance measures by law enforcement authorities should comply with the Council of Europe’s human rights standards set out in the European Convention on Human Rights. Such measures should also strictly respect the limits, requirements and safeguards set out in the Data Protection Convention 108.

The Declaration also draws attention to the criminal law implications of unlawful surveillance and tracking and to the relevance of the Budapest convention on Cybercrime to address this challenge.

Finally, the Committee also encourages states to introduce suitable export controls to prevent the misuse of technology to undermine human rights standards.

The Declaration, which must have been fun to write, is as follows

1. The propensity to interfere with the right to private life has significantly increased as a result of rapid technological development and of legal frameworks which are slow to adapt. 

2. Data processing in the information society which is carried out without the necessary safeguards and security can raise major human rights related concerns. Legislation allowing broad surveillance of citizens can be found contrary to the right to respect of private life. These capabilities and practices can have a chilling effect on citizen participation in social, cultural and political life and, in the longer term, could have damaging effects on democracy. They can also undermine the confidentiality rights associated to certain professions, such as the protection of journalists’ sources, and even threaten the safety of the persons concerned. More generally, they can endanger the exercise of freedom of expression and the right to receive and impart information protected under Article 10 of the European Convention on Human Rights. 

3. In this connection, it is recalled that, in accordance with Article 8 of the European Convention on Human Rights, Council of Europe member States have undertaken to secure to everyone within their jurisdiction the right to respect of private and family life, home and correspondence. Restrictions to this right can only be justified when it is necessary in a democratic society, in accordance with the law and for one of the limited purposes set out in Article 8, paragraph 2, of the Convention. 

4. As a corollary to the Convention and relevant case law of the European Court of Human Rights, member States have negative obligations, that is, to refrain from interference with fundamental rights, and positive obligations, that is, to actively protect these rights. This includes the protection of individuals from action by non-state actors. 

5. People nowadays rely on a growing range of both fixed-location and mobile electronic devices which enhance their possibilities to communicate, participate and manage their everyday lives. However, a growing number of these devices are equipped with software that are capable of collecting and storing data, including personal data (e.g. keystrokes that reveal passwords) and private information such as user generated content, websites visited, and geographical locations that potentially allow tracking and surveillance of people. This data can reveal delicate and/or sensitive personal information (such as financial, health, political, religious preferences, sexual habits) which can be aggregated to provide detailed and intimate profiles of them. 

6. Tracking and surveillance technologies can be used in the pursuit of legitimate interests, for example to develop new services, improve user experience or facilitate network management, as well as law enforcement. On the other hand, they may also be used for unlawful purposes that lead to illegal access, data interception or interference, system surveillance, and misuse of devices or other forms of malpractice; for example, geo-location tracking could be used to stalk women and make them more vulnerable to gender-related abuse and violence. 

7. In all cases, the modalities for processing personal data should comply with relevant Council of Europe standards. This implies ensuring that law enforcement’s own tracking and surveillance measures respect the applicable human rights safeguards, which should provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which should incorporate the principle of proportionality. It also concerns strict respect for the limits, requirements and safeguards set out in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and in its Additional Protocol as well as regard for other instruments such as Recommendation CM/Rec(2010)13 on the protection of personal data in the context of profiling. 

8. Against this background, the Committee of Ministers:

• - alerts member States to the risks of digital tracking and other surveillance technologies for human rights, democracy and the rule of law and recalls the need to guarantee their legitimate use which benefits individuals, the economy, society at large, and the needs of law enforcement; 

• - encourages member States to bear these risks in mind in their bilateral discussions with third countries, and, where necessary, consider the introduction of suitable export controls to prevent the misuse of technology to undermine those standards; 

• - welcomes steps taken by data protection authorities in some member States to raise awareness of the implications of tracking and surveillance technologies and to investigate these practices to ensure compliance with the provisions of Convention No. 108 and their national legislations; 

• - draws attention to the criminal law implications of unlawful surveillance and tracking activities in cyberspace and the relevance of the Budapest Convention in combating cybercrime; 

• - welcomes measures taken by both State and non-State actors to raise awareness among users, and, a fortiori, within the private sector and among technology developers about the potential impact of the use of such technologies on human rights and the steps which can be taken at the design stage to minimise the risks of interferences with these rights and freedoms (e.g. “privacy by design” and “privacy by default”); 

• - recalls the Council of Europe Internet Governance Strategy 2012-2015 which includes a number of action lines relevant to the challenges identified in this Declaration and looks forward to the concrete results of the work of the competent Council of Europe bodies.

Droit de suite inquiry

With the national election in sight the Commonwealth Arts Minister has announced terms of reference for the inquiry into the droit de suit, ie resale royalty for the visual arts under the Resale Royalty Right for Visual Artists Act 2009 (Cth) discussed in past posts.

The inquiry is to provide -

• an outline of the issues that the legislation was intended to address 
• an assessment of the efficiency and effectiveness of the legislation and associated scheme in achieving the original objectives 
• an analysis of the likely impacts had the legislation not been introduced 
• an assessment of the impact of the scheme on artists, the art market, art market professionals and consumers, including costs and benefits 
• the development and consideration of projections that show the likely scale of the scheme in future years 
• the identification and consideration of any revisions to the Act or regulations that could enhance the operation of the scheme.

ALRC Privacy Inquiry

The Attorney-General has released terms of reference for the Australian Law Reform Commission inquiry into invasions of privacy.

As noted in this blog and in articles in Privacy Law Bulletin and the Conversation the need for that inquiry is unclear, given that both the Commission (ALRC), the NSW Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) have previously made cogent recommendations regarding establishment of a statutory tort of serious invasion of privacy. Observers might be forgiven that the current inquiry is an exercise in street theatre and delay rather than a substantive move towards law reform.

The terms of reference are -

The ALRC should make recommendations regarding: 

1. Innovative ways in which law may reduce serious invasions of privacy in the digital era.  

2. The necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice. 

3. The detailed legal design of a statutory cause of action for serious invasions of privacy, including not limited to:

• legal thresholds 

• the effect of the implied freedom of political communication 

• jurisdiction 

• fault elements 

• proof of damages 

• defences 

• exemptions 

• whether there should be a maximum award of damages 

• whether there should be a limitation period 

• whether the cause of action should be restricted to natural and living persons 

• whether any common law causes of action should be abolished 

• access to justice the availability of other court ordered remedies.  

4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.

The Commission should take into account the For Your Information ALRC Report (2008), relevant New South Wales and Victorian Law Reform Commission privacy reports, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 and relevant Commonwealth, State, Territory legislation, international law and case law.

There is no indication that the ALRC will be provided with additional resources in conducting the inquiry, which is scheduled for completion mid next year.

Patent Litigation Histories

'Across Five Eras: Patent Enforcement in the United States 1929-2006' by Matthew Henry and John L. Turner uses univariate structural break analysis to estimate rates of patent enforcement in infringement suits in the United States over 1929-2006.

We separately estimate rates of validity and infringement for series constructed with district court and appellate court decisions. We find multiple structural breaks in series of both validity and infringement, and find that the breaks do not coincide. Our most reliable results suggest the rate of validity falls around 1939 and rises around 1983, and that the rate of infringement rises around 1951 and falls around 1990. We estimate an overall rate of winning on both validity and infringement to be between 27-29% for all years except for 1939-51 (when it falls to about 20%) and 1983-90 (when it rises to nearly 50%). ... 

[The] results lay out a sharp set of stylized facts to use in trying to understand the relation- ship between patenting, litigation and R&D. In light of these findings, it is interesting to note that the increase in the rate of patent validity in 1983 coincides with a surge in patenting and litigation, but the drop in the rate of patent infringement in 1990 leads to no similar reduction in patenting. Moreover, since 1990, we have seen the incidence and costs of patent litigation continue to grow (Bessen and Meurer 2008; Turner, Bessen, Neuhausler and Williams 2013). 

This suggests that the rate of patent validity may be a more important driver of patenting than the rate of patent infringement. Bolstering this argument, there is evidence for the impor- tance of the 1939 break in the rate of validity (for the rate of patenting) as well. Schmookler (1966, pp. 28-29) notes that from 1900-30, the number of technical engineers in the US econ- omy grew about five-fold, from 43,000 to 226,000. Contemporaneously, the number of patents quadrupled. Hence, the growth in patent roughly mirrors that in technical expertise. From 1938-54, the relationship between patents and technical know-how was far different. While the number of scientists, engineers and supporting personnel performing industrial research continued to explode, increasing six-fold, the number of corporate patents increased just 23%. 

In contrast, rates of infringement seem to have qualitatively different effects. It appears that, at least in the 1990s and 2000s, patentees’ willingness to initiate litigation has not been significantly dissuaded by a weaker doctrine of equivalents. This is also a period when non- practicing entity (NPE) litigation has flourished.

Gamete Donation

Past posts in this blog have highlighted Australian debate about deanonymisation of sperm donation and adoption.

'Can You Buy Sperm Donor Identification? An Experiment' (Harvard Public Law Working Paper No. 12-36) by Travis G. Coan and I. Glenn Cohen argues that

 In the United States, most sperm donations are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once they reach the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea. 

This study relies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the U.S. Our results support the hypothesis that subjects in the treatment (non-anonymity) condition need to be paid significantly more, on average, to donate their sperm. We find that individuals in the control condition are willing-to-accept an average of $83.78 to donate, while individuals in the treatment group are willing-to-accept an average of $124.21. These estimates suggest that it would cost roughly $40 per sperm donor per donation, at least in our sample, to require donors to be identified.

Cognitive Impairments and Criminal Responsibility

The NSW Law Reform Commission has released a report [PDF] on People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences. The report (No 138) responds to terms of reference initially issued in 2007. It relates to ss 32 and 33 of the Mental Health (Criminal Procedure) Act 1990 (NSW), fitness to be tried, the defence of "mental illness"; and the consequences of being dealt with via those mechanisms on the operation of Part 10 of the Crimes (Forensic Procedures) Act 2000 (NSW).

The report states that

This is the second and final report addressing people with cognitive and mental impairments and the criminal justice system. The first report (Report 135) was issued in June 2012. It dealt with the diversion of people with cognitive and mental health impairments from the criminal justice system, as well as related matters such as definitions of cognitive impairment and mental health impairment. .... 

The focus of this report, broadly speaking, is on the law relating to people with mental health and/or cognitive impairments who have committed serious offences. We consider fitness to plead, the defence of mental illness, substantial impairment, and infanticide. We also examine the procedures that follow a finding of unfitness or not guilty by reason of mental illness (NGMI), and the management of people who become forensic patients. Further, we consider issues relating to apprehended violence orders against people who have cognitive and/or mental health impairments. We also deal with the retention and destruction of forensic samples taken from people who are diverted, who are found NGMI, or who are unfit and not acquitted at a special hearing (UNA). ... 

A consistent finding of our review is that people with cognitive impairments face particular difficulties in the forensic system. We recommend that a Forensic Working Group be established and that one of its tasks be to develop an action plan for additional and improved options for the detention, care and community support of forensic patients with cognitive impairments (Recommendation 1.1). 

We also recommend that the principal legislation, the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA), should be renamed to include people with cognitive impairments (R 1.2). We recommend a review of the MHFPA to ensure it is clear and comprehensible (R 1.3). 

The minimum standards that the defendant must meet before he or she is considered fit to stand trial were set in 1958, and are commonly referred to as the Presser test. From our review of cases and feedback from stakeholders, the standards appear to work well and we do not recommend any fundamental change of direction. 

However, in response to stakeholder concerns, we recommend that the standards be updated and incorporated into statute, as in most other Australian jurisdictions (R 2.1). Codification will improve clarity and accessibility and will deal with some limitations of the present test. 

On balance we think it desirable to include in the test reference to the overarching principle that the defendant must be able to have a fair trial. This is the “touchstone” for making the judgement about whether or not the defendant’s degree of incapacity is, or is not, sufficient to do those things required by the Presser test. 

Modifications to trial processes are sometimes made in some cases where unfitness is an issue in order to make it possible for the defendant to have a normal trial. It is desirable, on the basis of fairness and public interest, for the defendant to have a normal trial if this can be achieved. We therefore recommend that the statutory provisions relating to the test for fitness should also provide that the court consider whether modifications to the trial process can be made, or assistance be provided, to make it possible for the defendant to participate effectively in the trial (R 2.2). 

Stakeholders identified difficulties with the current M’Naghten test for the defence of mental illness. A number of alternative formulations were proposed and considered in an extensive process of consultation. On the basis of the responses, we recommend that the M’Naghten test be revised and updated and incorporated into the MHFPA (R 3.1). This approach had the support of stakeholders and is consistent with developments in Australian and other cognate jurisdictions. 

The M’Naghten test has two elements: the definition of the qualifying mental state and the nexus between that mental state and the defendant’s acts. We recommend that the definition of the mental state required for the defence should be updated, and should be based on the definitions of mental health and cognitive impairment developed in Report 135 (R 3.2). There was very strong stakeholder support for the explicit inclusion of cognitive impairment in the definition. However, we note significant concerns relating to personality disorders and we recommend that they be excluded. We review the relationship between substance induced mental states and the M’Naghten test and recommend excluding addiction and the temporary effects of ingesting substances from the definition. Our recommended definition does, however, include those people who have complex needs. 

So far as the nexus between mental state and act is concerned, we recommend adding to the M’Naghten test a third “limb”, that the defence is made out if the person was unable to control their conduct. We recognise genuine concerns that this element of the test may act to exculpate defendants who were able to, but did not, resist the urge to offend and that it may pose evidentiary challenges, and create some difficult decisions for the tribunal of fact. However, this element of the test is included in most other Australian jurisdictions and was supported by the majority of stakeholders (R 3.2). 

We also consider a number of procedural issues relevant to the defence of mental illness. We recommend that the MHFPA provide that the defence of mental illness may be raised by the defence or, if the interests of justice require it, by the court or by the prosecution with permission by the court (R 3.3). 

We also recommend that if the prosecution and defence agree that the proposed evidence in a case establishes the defence of mental illness, the judge may review the relevant evidence. If satisfied that the evidence establishes the defence of mental illness, the judge must enter a verdict of NGMI. This approach is consistent with other jurisdictions and may save resources in some cases by obviating the need for a trial (R 3.4). 

Finally, we recommend that the name of the defence should include cognitive impairment (Recommendation 3.5) and that the verdict should be one of “not criminally responsible by reason of mental health or cognitive impairment” R 3.6). 

... we review the arguments for and against retention of the partial defence of substantial impairment and recommend in favour of retention because:

• the balance of opinion of stakeholders weighed strongly in favour of retention 

• the complexity of cognitive and mental health impairments, and their nature and effects, requires an appropriate range of legal responses 

• it is inappropriate to apply the label “murderer” to a person whose capacity to understand, make judgments or control her or himself was substantially impaired 

• flexibility of responses in sentencing and post sentencing apply in cases of manslaughter which do not apply for murder 

• changes following our 1997 recommendations appear to have appropriately reduced the number of cases in which substantial impairment is raised, and 

• the jury should have the role of making decisions about community standards in determining culpability. 

We recommend amendments to deal with some deficiencies identified in the formulation of this defence (R 4.1). For reasons of consistency and clarity, we propose that the same definition of cognitive and mental health impairments as we recommend in relation to the defence of mental illness in Chapter 3 should replace the current requirement that a person be affected by an “abnormality of the mind arising from an underlying condition”. 

We review the arguments for and against abolition of the offence and partial defence of infanticide. Although the arguments are finely balanced we conclude in favour of retention. In the very few cases where the defence is used:

• infanticide affords an appropriate and compassionate criminal law response to the complex and tragic circumstances that may result in a mother killing her infant 

• stakeholder opinion was strongly in favour of retention, and 

• infanticide provisions respond appropriately to a particular set of circumstances that may not, in all cases, be adequately dealt with by the partial defence of substantial impairment. 

The identified deficiencies in the present infanticide provisions are best dealt with by way of amendment. 

Section 22A of the Crimes Act 1900 (NSW), which deals with infanticide, relevantly provides that “at the time of the act or omission the balance of her [the mother’s] mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent on the birth of the child”. We recommend amending this formulation to require that, at the time of the conduct causing the death of the child, the defendant had a “mental health impairment consequent on or exacerbated by her having given birth to that child” (R 5.1). This formulation:

• retains the nexus between the birth of the child and the mental illness that is central to infanticide 

• requires that there be a temporal connection, and that the mental illness is a consequence of the birth or exacerbated by it, but does not require that it be shown that the illness was caused by the effect of giving birth 

• replaces the outdated and anachronistic term “wilful act or omission” in favour of “carries out conduct” 

• removes the reference to lactation because of the lack of evidence of any causal relationship between lactation and mental illness, and 

• adopts the updated definition of mental health impairment recommended in previous chapters.  

The current procedures that are followed after a person has been found unfit to be tried are complex and cumbersome, can cause lengthy delays and uncertainty, are not appropriate for defendants with cognitive impairments, and were criticised by stakeholders. In consultation we proposed a procedure to streamline these procedures and our proposal received universal stakeholder support. 

We recommend that when the court makes a finding in relation to the defendant’s fitness it also makes a finding as to the likelihood that the defendant will become fit. Those people that the court finds unlikely to become fit will proceed directly to a special hearing. Only those people who are likely to become fit will be referred to the Mental Health Review Tribunal (MHRT) for a maximum of 12 months, so that the MHRT can review their fitness periodically. If the MHRT finds the person fit, the presumption of fitness will be restored and the ordinary trial process may continue. If the person remains unfit, the matter will be referred to the court for a special hearing (R 6.1). 

In relation to the special hearing of a case where the defendant is unfit, we recommend that the MHFPA be amended so that the court may permit the non-appearance of the defendant, or exclude the defendant from the special hearing (R 6.2). In some cases the benefits of the defendant’s attendance at the special hearing cannot be realised. There are sometimes strong countervailing reasons in favour of non attendance, for example, if attendance is demonstrably producing deterioration in the defendant’s health, or where the defendant is unable to control his or her behaviour so that he or she persistently disrupts proceedings. We anticipate that this discretion will be exercised rarely. 

It is the present practice of courts to consider modifications of the trial process to facilitate the defendant’s participation in special hearings. We recommend that a provision in the MHFPA formalise this practice (R 6.3). 

Two issues relating to the conduct of special hearings require further attention. These are the appropriate role of lawyers who represent unfit defendants, and the possible role of a support person to assist the defendant to participate in the special hearing process. We recommend that the Department of Attorney General & Justice convene a working group to give further consideration to these matters (R 6.4). 

People who are found UNA or NGMI have much in common. In both cases the legal system goes as far as possible in the circumstances to provide a fair trial or to establish that the person committed the acts constituting the offence. The MHRT manages both groups in substantially the same way. However, there are significant differences in court powers in relation to these two groups. We recommend that the court powers should be consistent following a finding of both UNA and NGMI (R 7.1). 

We recommend that, in relation to both groups, the court first determine if the person would have been sentenced to imprisonment if found guilty at a normal trial. If he or she would have been imprisoned, the court must nominate a limiting term, being the best estimate of the sentence that would have been imposed at a normal trial. When setting the limiting term the court must take into account that the person’s cognitive or mental situation may mean that he or she cannot demonstrate mitigating or discounting factors available to other defendants. A person ceases to be a forensic patient at the end of the limiting term (R 7.2). 

A significant consequence of this recommendation is that those found NGMI will no longer be at risk of being detained indefinitely. Because of the potential risk factors associated with this recommendation we consulted on this issue extensively. We concluded that a time limit should apply because it:

• provides an important protection for forensic patients 

• is fair, and does not provide for forensic patients to be detained or managed within the forensic system for longer than they would have been detained following conviction, and 

• supports the raising of NGMI in appropriate cases: we were told repeatedly by stakeholders that indeterminate outcomes deter people from raising NGMI, so that people who should be in the forensic system are instead in the correctional system.

Issues of community safety upon release will be dealt with through:

• ongoing treatment and support in the community 

• transfer to the civil mental health system or the guardianship system, and 

• provisions for continuing detention in cases of continuing risk, as recommended in Chapter 11. 

After a court has determined that imprisonment would be appropriate and has set a limiting term it should refer the defendant to the MHRT. The present procedures governing referral and the powers of the MHRT are confusing and inconsistent and we make recommendations to improve them. In particular we recommend that the initial determination about the detention and treatment of forensic patients should be made by the MHRT, which has the relevant expertise (R 7.3). The court should make only an interim order pending MHRT review, which should occur within two months after referral (R 7.3 and R 7.5.) 

There may be a few cases where a person found UNA or NGMI would not have been sentenced to imprisonment at a normal trial. We recommend that such people should be made forensic patients for a two year period (unless unconditionally released earlier), and that the MHRT supervise them with a presumption that they will be treated in the community (R 7.4). 

We recommend that people found NGMI should be able to appeal against this finding regardless of whether they set up the defence. The current position in NSW, which limits appeals if the defendant sets up the defence, is inconsistent with many other Australian jurisdictions. Given the likely mental state of the defendant when making such decisions, and the inherent difficulty in ascertaining this if an appeal is raised, we are of the view that an appeal against a finding of NGMI or a limiting term should not be restricted (R 7.6). We make an alternative recommendation to similar effect which will apply in the event that our recommendations (RR 7.3-7.5) revising procedures after a finding of UNA and NGMI are not adopted. 

This chapter deals with the considerations to which the court and the MHRT should have regard when deciding what orders to make about a person who has been found UNA or NGMI. 

One of the most important decisions concerns the circumstances in which the person should be granted leave or should be released into the community. The existing test is inconsistent both with the test for involuntary detention in the civil mental health system and contemporary understandings of risk assessment. We recommend that the test be changed so that the MHRT should only make an order for leave or release if it is satisfied that the person’s release would not pose a significant risk of serious physical or psychological harm to others (R 8.1). 

We also recommend amendments to the MHFPA to the effect that the MHRT may order leave or release in the rare circumstances where a forensic patient poses a risk of harm solely to themselves, and not to others (R 8.2). In these circumstances the patient should be managed in the civil mental health system or the guardianship system. 

The present relevant provisions of the MHFPA contain a presumption of detention when deciding whether to release a person into the community. We have concluded that this presumption should continue to apply. 

The principle of least restriction, namely that a person with a cognitive or mental health impairment should be entitled to treatment in the least restrictive environment possible, is presently relevant to decisions about forensic patients under the MHFPA, but only indirectly. We recommend that the principle receive more prominence. When making decisions the MHRT should apply the principle that a forensic patient should be provided with the least restrictive environment necessary to protect against serious harm to the forensic patient or to others (R 8.3). This principle means that a more restrictive environment should only be imposed on a patient to the extent that it is necessary to protect against a risk of harm to the person or to others. If there is a less restrictive alternative that would achieve the same aim, then that alternative should be applied. 

We recommend that the provisions for the making of a victim impact statement to the court should be extended to apply in circumstances where the defendant has been found UNA or NGMI (R 8.4). We do so for two reasons. First, such a statement can play an important role in the grieving process for victims of crime. It may also assist in alleviating the problem identified by stakeholders, that victims seek to put their views before the MHRT as the only avenue through which they may be heard. Secondly, we have recommended that the court set a limiting term for people found UNA and NGMI by reference to sentencing principles. Given that a court can take into account victim impact statements in the ordinary course of sentencing a convicted offender for certain specified offences, it is appropriate for victim impact statements to be taken into account similarly in setting a limiting term. 

We also consider the appropriate role of victims and carers in review proceedings before the MHRT. We make no recommendations for change to the provisions applying to victims, this being best left to the MHRT to manage. We recommend that regulations be made to require that carers be notified of upcoming MHRT reviews, and that they be given the opportunity to make submissions to the MHRT on relevant matters pertaining to the care, treatment, control or release of the forensic patient (R 8.5).    

... We consider the management of forensic patients after the court process has ended, focusing on the decision making functions, powers and procedures of the MHRT. 

We identified a number of problems relating to the relationship between the MHRT and other agencies and individuals in the forensic system, including problems with:

• provision of information to the MHRT 

• failure to comply with requests or orders of the MHRT 

• information sharing about forensic patients, especially difficulties relating to privacy issues 

• availability of services for the support of forensic patients to allow them to progress through the forensic system, and 

• arrangements for continuing care when a person ceases to be a forensic patient, especially for people with cognitive impairments and complex needs.

We have concluded that these problems are best resolved by agreement and collaboration between the relevant agencies, rather than by law reform. We recommend that a Forensic Working Group of key stakeholders be established to consider these issues and to develop proposals to deal with them (RR 9.6, 9.7 and 9.13). 

The MHFPA makes provision for arrangements to be made for the care of forensic patients who are given leave or release from a mental health facility. However, no agency appears to be responsible for such arrangements when a forensic patient is given leave or released from another place – usually a prison or detention centre. We therefore recommend that the Commissioner of Corrective Services and the Chief Executive of Juvenile Justice develop processes to support planning and arrangements for leave or release of forensic patients, including their subsequent treatment (R 9.8). 

If the MHRT is considering the release of a forensic patient who is UNA, under the MHFPA it must currently have regard to “whether or not the patient has spent sufficient time in custody”. The MHFPA provides no guidance as to the meaning of “sufficient” in this context but it has been interpreted as implicitly punitive in intent. A punitive approach is inconsistent with the legislated objects of the forensic system, and with the MHRT’s central role of overseeing the provision of treatment to forensic patients with a view to promoting patient recovery and protecting the community from harm. Stakeholders agreed that the requirement of sufficient time in custody should be abrogated. We recommend the removal of this consideration from the framework of MHRT decision making (R 9.12). 

The MHRT must inform the Minister for Police, the Minister for Health and the Attorney General of any order it makes for the release of a forensic patient. The provision appears to be a relic from the days when the executive government could instigate the return to custody of forensic patients who were conditionally released into the community. Previous reviews have recommended that the requirement to notify the Minister for Police should be removed and we also make this recommendation. The Minister for Health and the Attorney General have appeal rights against release, and we recommend that the requirement that they be notified be moved, for clarity, to the section of the MHFPA dealing with appeals (R 9.5). Arrangements concerning any notification of the NSW Police Force about release of forensic patients should be dealt with by information sharing arrangements arrived at by agreement between agencies. 

We also make a number of procedural recommendations to respond to identified problems with the MHFPA. These recommendations:

• clarify when a person becomes, and ceases to be, an interim forensic patient and a forensic patient (R 9.1) 

• permit reviews to be adjourned by a President or Deputy President of the MHRT sitting alone (R 9.2) 

• clarify some of the terminology used in the MHFPA to describe people with mental health and cognitive impairments (R 9.3) 

• suggest that the content of reports to the MHRT be dealt with by regulation (R 9.4)  

• suggest that the MHRT provide information about ways in which breaches of orders relating to leave and release may be reported (R 9.9) 

• clarify certain provisions relating to detention and treatment of forensic patients in the civil mental health system (R 9.10 and R 9.11) 

• clarify certain provisions relating to release (R 9.14), and 

• provide for suspension of reviews and limiting terms where a forensic patient leaves NSW without the MHRT’s approval (R 9.15).  

The aims of the forensic system are to protect the community, and to provide treatment and services for forensic patients to resolve the issues that caused their offending behaviour. However, in NSW, as in many other jurisdictions, there are insufficient facilities able to provide both the required level of security and also the treatment and services needed by some forensic patients. Consequently, some forensic patients are held in correctional centres. 

A number of problems have been identified with detaining forensic patients in correctional centres, including:

• providing appropriate therapeutic treatment and services in a correctional environment 

• the potentially detrimental effect of that environment on the health and psychological wellbeing of people with cognitive and mental health impairments, and 

• providing programs involving monitored reintegration into the community.

The problems appear to be particularly acute for forensic patients with cognitive impairments. 

We conclude that the MHFPA should provide that forensic patients should only be detained in correctional centres when there is no other practical alternative (R 10.1). Although the detrimental effects of holding forensic patients in correctional institutions are well recognised, it would not be desirable to recommend prohibition of such detention in NSW until alternative facilities are available. 

Resolution of the practical and resource issues that arise in this context, particularly in relation to forensic patients who have cognitive impairments, is a complex task. Consequently we recommend that the Forensic Working Group (R 9.6) develop a strategy and implementation plan for the provision of facilities outside correctional centres for forensic patients who have cognitive impairments, and for management of forensic patients in correctional centres in ways that facilitate leave and release during their limiting term (R 10.2). 

We recommend that all people found UNA or NGMI should have a limiting term imposed (R 7.2). However, there may be some forensic patients who reach the end of a limiting term and still present a serious risk of harm to others if released into the community without the continued oversight of the MHRT. Many forensic patients who present a continuing risk of harm are dealt with by admission to the civil mental health system, by appointment of a guardian with appropriate powers, or through the Community Justice Program. There are likely to be very few patients who cannot be provided for in these ways and in relation to whom continued detention or supervision remains an issue. However, their number is likely to increase as a consequence of our recommendation introducing limiting terms for those found NGMI. 

... we recommend that it should be possible for forensic patients to be detained or to be subject to continuing supervision in the community beyond the expiry of their limiting term in certain carefully defined circumstances. To be consistent with principles of domestic and international law, such a scheme for preventative detention should contain clear grounds and procedures established in advance, reasons for the detention should be required and court control of the decision should be available. 

We review several options for legal regulation of continuing detention. In particular we consider the existing provisions in NSW relating to continued detention of high risk sex offenders and violent offenders and recommend that these provisions be adapted to apply to forensic patients who present an unacceptable risk of causing serious physical or psychological harm to others if they were to cease to be a forensic patient. An application to extend a person’s forensic status should be made to the Supreme Court. There should be an obligation to consider managing risk using less restrictive means, and orders should be limited to a maximum period of five years. If the Supreme Court makes an order, the MHRT will continue to manage the forensic patient, including holding regular reviews, and will be able to make any order it can presently make except an order for unconditional release. The Supreme Court should be able to revoke an extension order if circumstances change significantly so that the order is no longer necessary (R 11.1). 

... we consider the current application and operation of fitness procedures, and the defence of mental illness in the Local and Children’s Courts. Currently the provisions in the MHFPA relating to fitness and the defence of mental illness do not apply in the Local and Children’s Courts. Significant problems with the current regime are identified. We recommend that these courts should be able to apply the provisions relating to fitness and the defence of mental illness in the MHFPA. The Local Court and Children’s Court may divert defendants who have cognitive or mental health impairments under s 32 and s 33 of the MHFPA. Consistent with a proportional response to offending we recommend that, where questions of fitness or the defence of mental illness are raised in the Local or Children’s Courts, the court must first consider whether an order under s 32 or s 33 of the MHFPA should be made. (RR 12.1, 12.3, 12.4 and 12.6). 

Deficiencies in the current law are also identified relating to committal proceedings in both the Local Court and Children’s Court where a defendant is unfit. We recommend that the MHFPA be amended to provide that, if an issue of fitness is raised, the Local Court and the Children’s Court should continue with committal proceedings and reserve the question of fitness for determination by the District or Supreme Court if the defendant is committed (R 12.2 and R 12.5). This has the consequence that a committal hearing will be conducted when the defendant is unfit and unable to participate effectively in the proceedings. However, it appears to be a better solution than the alternative, that there be no committal proceedings because of the defendant’s unfitness, in which case the defendant would lose the possibility of early discharge and the advantage of screening and testing the evidence. 

Stakeholders frequently raised issues relating to apprehended violence orders (AVOs) and, as a result, we issued Question Paper 1 to seek further information. We have summarised the information and case studies submitted by stakeholders to provide a resource for future work on this issue. Because of the nature of our inquiry our focus is on people with cognitive and mental health impairments as  defendants in AVO applications. Other issues arise which are not addressed in this report, for instance relating to people with impairments as victims, witnesses and family members. 

Stakeholders reported that AVOs are commonly being taken out against people with cognitive and mental health impairments, and that they regularly breach these orders. Applications are made by family members, paid carers, and others. People with cognitive and mental health impairments have problems in understanding and complying with AVOs, particularly in the absence of legal representation. For these reasons, orders may not provide the required protection for the victims of violence, and extra-legal supports may be required to ensure compliance. 

We recommend that the court take into account the defendant’s cognitive or mental health impairment in considering whether or not to make an AVO, where the defendant’s capacity to understand and comply with an order is significantly affected. We also recommend that the defendant’s capacity to understand and comply with the order be taken into account when framing the terms of an order. While the protections provided by an order should not be compromised, the effectiveness of an order may be improved if the person can understand what is required of them (R 13.1). 

The terms of AVOs are difficult to understand for many defendants, and we recommend that the Apprehended Violence Legal Issues Coordinating Committee convene a working group to revise the standard and common additional conditions of AVOs and redraft them in plain English (R 13.1). 

Magistrates may be under-resourced and ill-equipped to make an assessment as to the extent and effect of a defendant’s cognitive or mental health impairment in a busy court list. We recommend that they be provided with support and advice by the Statewide Community & Court Liaison Service and that Legal Aid NSW extend provision of legal representation to AVO defendants who have impairments (R 13.1). 

Although an AVO is a civil order, breach is an offence. We recommend that, when responding to breach of an AVO by a person with a cognitive or mental health impairment, the court should consider whether or not it should make an order under s 32 of the MHFPA, so that the defendant is connected with services that will deal with the causes of the breach (R 13.1). 

We note that the requirement for police to apply for an AVO where a domestic violence offence is suspected can have particularly detrimental effects for a defendant with a cognitive or mental health impairment, especially where the AVO is applied for on behalf of a family member or paid carer. We recommend that guidelines be developed for police who are dealing with AVOs where the defendant has an impairment, especially in relation to the exercise of their discretion as to whether that impairment constitutes a good reason not to make an application for an AVO (R 13.2). 

Finally, the Department of Attorney General and Justice is carrying out a statutory review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), with particular focus on the definition of “domestic relationship” in that Act. If the review recommends retention of the current definition of “domestic relationship”, then we recommend that further consideration be given to clarifying that that a paid carer and client relationship will only qualify as a “domestic relationship” where the client is seeking an apprehended violence order against a paid carer (R 13.3). 

The NSW Police Force can retain fingerprints, DNA samples and other forensic material of some offenders to assist in the investigation of crime. The legislation regulating the retention and destruction of forensic material, the Crimes (Forensic Procedures) Act 2000 (NSW) (CFPA), is intended to strike a balance between promoting the efficient investigation of crime and protecting privacy rights. Although the CFPA contains provisions detailing what should happen to forensic material collected from people who are subsequently convicted or acquitted of an offence, the Act does not specify what should happen to forensic material collected from people who are: subject to a diversionary order under s 32 or s 33 of the MHFPA found NGMI, or found UNA. 

We recommend that forensic material relating to people subject to a diversionary order under s 32 or s 33 of the MHFPA should be destroyed if the person is discharged without conditions. If conditions are applied, as they will be in most cases, the material should be retained only for the period during which it is possible for the court to deal with the original charge. However, the Police Force or the Director of Public Prosecutions may apply to the court for the forensic material to be retained. When considering such an application the court should take into account the gravity of the alleged offence, the circumstances of the offence and the person’s impairment (R 14.1). 

We recommend that a finding of NGMI and a finding of UNA should be treated as equivalent to a conviction for the purposes of the CFPA (R 14.2 and R 14.3). The general effect of these recommendations is that forensic material will be retained in such cases.