Friday, June 30, 2006



Standing mute

Over the last week, the Kahui family has come in for vicious criticism for exercising their right to silence. So what's the alternative? National's Richard Worth plagarises wikipedia to remind us of what we used to do in the past:

Peine forte et dure (Law French for "long and forceful punishment") was a method of torture formerly used in the common law legal system, where a defendant who refused to plead ("stood mute") would be subjected to having heavier and heavier stones placed upon his or her chest until a plea was entered, or as the weight of the stones on the chest became too great for the victim to breathe, suffocation would occur.

(This seems to clash with claims from the Law Lords that "the English common law has regarded torture and its fruits with abhorrence for over 500 years", and that torture had traditionally been performed under colour of the royal prerogative rather than the courts (read the full judgement) - but that seems to have been about using torture to extract evidence rather than getting people to plead)

While I'm sure that critics of the right to silence are as horrified as I am at the thought of pressing answers from people with heavy stones, it does make the problem clear. What exactly do they propose be done with people who refuse to talk to the police? Stick them in a cell until they do? Torture them? Not only would either be a gross violation of fundamental rights; it would also result in the police being told whatever they wanted to hear. That's probbaly fine if, like the police, you want to "make someone responsible" (rather than find who is responsible) - but if you are concerned about justice and finding out who is actually guilty, then it should be an anathema.

13 comments:

I also heard, on Checkpoint last night, that the lawyers involved for the Kahui and King families are being heavily criticised by some (the regular suspects) for merely being involved.

So now the Kahuis are not only not entitled to keep their mouths shut, but they aren't allowed legal advice either?? Thank goodness social pressure and mouthing off in talkback land don't constitute law (yet).

The crime was horrific. Doesn't mean that everyone involved has to be treated unfairly - if anything they should be set an example. (Not that we actually have any suspects or charges yet, and indeed what happened to innocent until proven guilty).

(Can you tell this whole thing has got under my skin a bit? It's been a long working week and it's not quite over yet, urgh)

Posted by span : 6/30/2006 01:44:00 PM

This comment has been removed by a blog administrator. Posted by Rich : 6/30/2006 01:49:00 PM

All very true.

However, let's suppose that one of the family breaks ranks, goes to the cops and names the murderer. And further to this hypothesis, that they go on to give evidence that there was a family meeting, that everyone knew who the killer was, and they agreed to stonewall the cops.

Wouldn't everyone present at the meeting be guilty of conspiracy, being an accessory after the fact, or both? And I think that morally they should (assuming proof) all go to jail for a long time.

Of course, a jury would have to weigh the evidence carefully to be sure that the witness wasn't lying. There have been numerous cases like this, not just with close-knit families, but also with cops, gang members, etc. Unfortunately a lot end in acquittal - but that's the price of justice.

Posted by Rich : 6/30/2006 01:51:00 PM

Rich: quite possibly. I'm not sure legally how far you have to go to be obstructing justice; you may need to do something more than simply agree not to talk (not talking being perfectly legal in and of itself). But if at the end of this the police have sufficient evidence to bring such charges, then they should do so.

Posted by Idiot/Savant : 6/30/2006 02:21:00 PM

Tilting at windmills again idiot. This was not a case of "vicious criticism for exercising their right to silence". They were criticised for knowing who did it and not telling. The right to remain slient has never been an issue, the issue being they are covering for a murderer. In some circles that's quite objectionable.

Posted by Neil Morrison : 6/30/2006 03:23:00 PM

Neil: sure, it's objectionable. But my point is that (contrary to what those objecting were suggesting) you can't actually make people talk, either legally or practically. And if you do, you become every bit as monstrous as those you are trying to bring to justice, and poison your entire justice system to boot.

Posted by Idiot/Savant : 6/30/2006 03:38:00 PM

Perhaps we could set up a Guantanamo-style camp on an unpleasant Pacific atoll for all those we want to deal to but legally can't? If America can do this, why can't we? (And it could be a few years before our own supreme court would strike this down, by which time the family may have started talking about who murdered the kids)

Posted by Uroskin : 6/30/2006 03:55:00 PM

Personally I'm not suggesting they should be forced to talk, not talking is their prerogative, and if an individual chooses to not talk and by not talking implicates themselves in a crime, or is held in contempt when directed by a judge to answer a question, that is also their prerogative.

IMO, and IANAL, remaining silent in this case, for those who are not the actual murderer(s), is a crime. Either aiding and abetting after the fact, which I'd prefer, or if neccssary, obstruction of justice.

I'd like people to consider, if this was a group of rich lawyers and bankers refusing to talk because a young girl and boy were found dead and raped in one of the banker's houses during a meeting of the Hellfire Club, would you still be supporting them in the same way?

Maybe you would, and if so, congratulations, but I do suspect that the fact this is a pair of Maori families, and not a bunch of rich white males in the same situation, is affecting people's judgement of the rights and wrongs of the situation.

For span, actually we do have suspects. Technically everyone who is there is a suspect until the evidence, including statements of witnesses, eliminates them. One possibility (given that I haven't seen the coroner's reports) might be that everyone present was directly involved in a ritualistic killing.

And yes, being a suspect does not make you guilty.

I don't think anyone arguing this has questioned either the right of a witness to not incriminate themselves or the requirement for proof.

We are merely arguing over whether the police have been too soft-handed in their approach to investigating this crime, giving the guilty parties too much chance to eliminate evidence and protect themselves.

If no charges are laid at all at the end of the investgation, then I'd consider it had been mishandled, as there should be some charges that can be laid, even if not the major ones of murder or manslaughter.

Posted by Anonymous : 6/30/2006 04:02:00 PM

Uroskin: why set up our own camp? We could just borrow the Australian one in Nauru... [/SARCASM, for the impaired]

Posted by Idiot/Savant : 6/30/2006 04:05:00 PM

What if your life or the life of your family is credibly threatened with death or worse if you talk, would you personally then speak up?

It's very easy when you are young and single to stand on clear principles, but when your loved ones are threatened, your principles often sag under the pressure.

Posted by Grokodile : 6/30/2006 04:24:00 PM

Anon, sorry I should have been clearer about my statement about there not being any suspects. I meant simply that the police have not indicated that they have any suspects.

grokodile - I'm a little confused by your comment, in the context of this post and the above comments, perhaps you would like to expand?

Posted by span : 7/01/2006 03:21:00 PM

There is no 5th amendment right in New Zealand to allow one to remain silent to prevent self-incrimination.

So surely the police have the right to charge them with obstruction of justice if they remain silent? Of course if they give misleading information or are actually "talking" but saying "I don't know" then it would be the trickier case of having to prove otherwise so that they could be charged.

In terms of who would this help? The other future potential victims of course - both within this family and others. It needs to be known that it will not be tolerated to either perform these acts nor deliberatly harbour the people capable of them. Doing so *is* a crime - not quite the same magnitude, but certainly of a condoning mindset.

Posted by iiq374 : 7/05/2006 08:47:00 AM

iiq: the right to silence is well-established in New Zealand law and enshrined in our Bill of Rights Act; see the discussion here (particularly the comments where I quote Rishworth et al) for the details.

Obstruction of justice and assisting after the fact are crimes, but they may require something more than exercising your legal right to remain silent in the face of questioning. And in any case, they are difficult to prove if no-one talks.

Posted by Idiot/Savant : 7/05/2006 10:23:00 AM