The SFO and the right to silence

Newsroom today has an article asking Is the SFO too powerful for its own good?. The article is about the NZ First Foundation fraud trial, and much of it is about the allegation that Labour politicians were charged and questioned solely to protect the SFO from expected government moves to disestablish the agency. But the first part of the article talks about the SFO's compulsory examination regime, in which there is no privilege against self-incrimination, no right to silence (refusing to answer is a criminal offence punishable by up to a year in prison), and a secrecy clause preventing anyone questioned from talking about it.

As Newsroom notes, this is a pre-BORA law, and clearly inconsistent with it. Section 23(4)(b) affirms the right to silence of those arrested or detained, while s25(d) affirms the right of someone charged not to be compelled to be a witness or to confess guilt. But refusing to attend for questioning is a criminal offence, so those questioned are effectively detained, and where the powers are used against a suspect (rather than a third party like an accountant) then they are clearly used to compel people to give evidence against themselves. Which raises the obvious question: isn't it time we reviewed this law and replaced it with a BORA-consistent regime?

Interestingly, we kindof already have. A decade ago, when the government was first thinking of disestablishing the SFO and moving serious fraud investigation back into the police, the Search and Surveillance Act introduced a new system of "examination orders". But it has never been used - the police have never applied for or been granted such an order in a decade, preferring instead to pass cases where it might use such powers on to the (still-extant) SFO. But a consultation document for a 2016 review of the law provides a useful overview. The examination order regime had a clear focus on being used against third-parties and witnesses, to provide legal protection for those otherwise bound to confidentiality. It is questionable whether it can even be used against suspects. While there is no right to silence - something Parliament was deeply uncomfortable about and added safeguards as a result - the right against self-incrimination is not overturned. The regime is far from perfect - while compulsion may be required to overcome professional obligations, there seems to be other ways to do that without generally violating the right to silence, and an explicit statement that they cannot be used against suspects is required - but it would still be a marked improvement on the SFO's existing regime. It would also bring the SFO into compliance with the Search and Surveillance Act and all its caselaw about its relationship with the BORA. And that would seem to be a Good Thing.

The police should not be able to circumvent the law like this

New Zealand prides itself on being a civilised country when it comes to law enforcement. As part of this, people questioned by police enjoy some basic protections: the right to silence, the right to counsel, the right to know why they are being questioned. We have these safeguards to prevent injustice: to reduce the risk of false confessions to police, and to limit the ability of police to stitch up innocent people.

The police have been told that they can ignore all that, if they're willing to spend enough money on it and call it an "undercover operation".

There have recently been two cases which have used the "Mr Big" technique, where suspects are "recruited" into a criminal enterprise (actually a network of undercover police officers pretending to be criminals), and then eventually subjected to an interrogation in order to be able to become a full member. The interrogation is coercive, it implicitly involves detention (suspects are taken to a distant part of the country by their "criminal" associates and implicitly threatened with punishment if they leave), and of course it is conducted without the benefit of counsel or any procedural safeguards. It places strong incentives on suspects to tell the interrogators what they want to hear, meaning that it encourages false confessions. If the police did this openly, there would be no question that the evidence would be inadmissible (and the officers responsible would be disciplined or sacked). But a majority of the Supreme Court have found that it is legal. As one of the dissenting justices noted, the police should not be able to ignore our human rights by taking off their uniforms and pretending not to be police. These are official police actions, paid for with public money. The protections of the Bill of Rights Act and of our legal tradition should therefore apply. To allow otherwise is to allow the state to break its own rules by a subterfuge. And if they are allowed to do that, why should we obey them?

[See also: Andrew Geddis on the Supreme Court decision]

Time to defend the right to silence

Another day, another attack by the government on the rights of the accused. This time, its the right to silence: as part of a new package aimed at reducing family violence, the government will

explore whether prosecutors should be able to invite the judge or jury to draw an adverse inference when a defendant refuses to give evidence in sexual violence cases. Current law only allows the defendant, the defendant’s lawyer or the Judge to comment on a defendant’s failure to give evidence.

Apparently England and Wales have such a system, but unlike Judith Collins I'd hardly consider Britain, with its creeping totalitarianism and corrupt police force, to be a model for our justice sector.

As for why we should resist this, its simple: because it undermines the right not to be compelled to give evidence against yourself. To point out the obvious, if an adverse inference can be drawn from your refusal to speak, then that is no longer a right. It is also a direct attack on the presumption of innocence, in that rather than proving their case, police will be able to use a defendants refusal to admit guilt to imply it. Which probably sounds great to regressives like Collins who want to drag us back to the era of guilt of accusation, but the result will be injustice and the persecution of the innocent.

There are sound reasons why no-one should ever talk to the police under any circumstances (American context, but the same principles apply here). The response to people taking their right to silence seriously is not to strip it from them, but for the police to do their fucking job and find another way to build a case. And if they can't, it is better to see the guilty go free than an innocent punished.

A freudian slip

The Government has finally released its proposed amendments to the Search and Surveillance Bill. Which has highlighted the bill's resurrection of "examination orders" which allow police to force suspects to answer questions, on pain of imprisonment. But Judith Collins assures us that the police will never abuse this power:

In response to the concerns of some groups, the 7-year threshold means that examination orders are not available to investigate such crimes as protesting, trespass, disorderly behaviour or unlawful assembly.

Firstly, it speaks volumes about Collins that she thinks "protesting" is a crime. And secondly, that's no protection at all; as we've seen, the police are perfectly willing to overcharge to send a message, reclassifying protest as "burglary" or "participation in an organised criminal group" in order to intimidate and silence. And they'll be perfectly willing to do so in the future. The only real protection against these powers is not to have them. That will be inconvenient for the police (who might have to do their fucking jobs and gather evidence, rather than just use the law to coerce confessions out of people), but it will be a lot safer for us.

Saving the right to silence

More good news today: having tried to pass the buck on its plans to undermine the right to silence and the presumption of innocence, the government has backed down. The right to silence has been saved. Take that, Stephen Franks!

But that's only half the struggle. The bill as it stands would also abolish the right to trial by jury for most crimes, allowing the government to lock you away for up to three years on the word of a judge alone. The driver for this is of course cost; rather than building more courtrooms and hiring more judges, the government wants to trim the cost of selecting and empanelling juries. But what we'd save in cash, we'd more than pay for in injustice and the credibility of the justice system. The problem is as much one of perception as reality. Judges say they're as fair as juries, and that justice won't suffer - but the public just doesn't believe it. We know juries are a vital safeguard, a bullshit detector to prevent stitch-ups and ensure the police have done their job. And we don't trust judges to do that job for us. Especially when they regularly seem completely divorced from reality.

But there's a bigger problem here as well. The right to trial by jury for any offence with a penalty greater than three months imprisonment is currently enshrined in the Bill of Rights Act. Simon Power is proposing to amend that clause. And he can, with a simple majority of the House (in this case, its a majority of zombies and crazies - Roger Douglas and Hilary Calvert). But this is a fundamental part of our constitution we're talking about! If they can do this, they can also do it to freedom of speech, or the right to vote.

If there's one thing this debacle has taught us, its that politicians can't be trusted as guardians of our fundamental rights. It is time to take those rights out of their hands, by entrenching it and requiring either a supermajority or a referendum to modify. We currently do this with the core of the Electoral Act; its time we did it for our other rights as well.

Passing the buck

The government is currently trying to ram through its Criminal Procedure (Reform and Modernisation) Bill before Parliament rises in October. But there's a problem: the bill's "reforms" - which include undermining the right to silence and the presumption of innocence and abolishing jury trials in almost all cases - are so odious that even the tame dogs in the Maori Party and the loons in ACT won't vote for them. So, National has been forced to compromise on some aspects of the bill. In particular, the proposal to force pretrial disclosure (which effectively forces defendants to give evidence against themselves by admitting any element of a crime they are not contesting) will be replaced:

[The] new clause would allow the Rules Committee, a panel of legal experts chaired by Chief Justice Dame Sian Elias, to decide if a disclosure regime should be enforced, and if so, how.

The committee has responsibility for procedural rules in the court system, and relies on advice from judges, lawyers and other interested parties.

On the one hand, this clause is still odious. The right to silence is absolutely fundamental to a fair trial, and our judges should not have the power to abolish it like this. On the other, its also a fairly obvious fudge, allowing Power to back down without having to admit he's doing it. And on the third, by passing the buck like this, our MP's are effectively refusing to do their jobs as legislators. And if they're going to do that, if they're happy for judges to effectively make the law on fundamental rights, then lets go the whole way, make the BORA superior law, and give them the power to enforce it by striking down inconsistent laws.

Meanwhile, there's no word on whether National's squad of mercenaries and crazies - Roy (who is doing it in a clear quid pro quo to get back at student's associations), Dunne, Douglas and Calvert - are backing Power on abolishing juries or not. I hope not. This is a fundamental change to our constitution we're talking about here, and one which affects every single one of us. That's not the sort of thing which should pass by a narrow majority under end-of-session urgency. And if it does, then I think its time we emasculated Parliament and took the power to amend the BORA off them.

MMP saves the right to trial by jury

It looks like the government no longer has the numbers to pass the Criminal Procedure (Reform and Modernisation) Bill in its present form. Good. The bill would undermine the right to silence and the presumption of innocence, and abolish the right to a jury trial in almost all cases. These are fundamentals of our justice system, vital to ensuring that trials are fair and the innocent are not wrongly punished. And now, thanks to ACT and the Maori Party's second thoughts, it looks like they might be preserved.

Its worth highlighting that this would not have happened under an unfair electoral system or a majority government. It is the second thoughts of National's coalition partners, forced on them by MMP, which has caused this change. So, in a real sense, MMP has saved the right to a fair trial in New Zealand.

Reported back

The Justice and Electoral Committee has reported back [PDF; large] on the Criminal Procedure (Reform and Modernisation) Bill. In addition to modernising parts of the criminal process, the bill mounts a serious attack on the rights of the accused, abolishing the right to a jury trial in most cases, while forcing defendants to admit elements of the case against them (undermining both the tight to silence and the presumption of innocence) in the name of "efficiency". These "reforms" are fundamentally unjust, and attack core safeguards in our justice system. The select committee had a chance to amend them based on the evidence of submitters. So, did they?

Yeah, right. Oh, they've done some minor tweaking of the requirement to disclose matters in dispute, but the core problem remains: requiring defendants to notify which elements are in dispute effectively forces them to admit those which are not, while reducing the burden of the crown to prove every element of the case beyond a reasonable doubt. It undermines both the right to silence and the presumption of innocence, while allowing shoddy practice by prosecutors and potentially unsafe convictions. As for juries, those highly controversial changes - which will require amending the Bill of Rights Act, a core constitutional law, for only the second time in its history - did not even warrant a mention. And MPs wonder why the public has little faith in the select committee process. It's because a majority government can turn it into this sort of farce.

To their credit, Labour issued a minority report objecting to these changes. But unless they put their money where their mouth is, and promise repeal, then that's just so much hot air. Parties should be judged by their actions, not their words, and a party which allows such injustice to stand is not worthy of our support.

As for the Greens, given their opposition to the bill at first reading - the only party who did so - I would have expected a minority report from them as well, or a joint report with Labour. Instead, they're silent. Has their position on the bill changed? Or were they just slack?

Update: I've heard from Kennedy Graham, the Green member on the committee; they still oppose the bill, but he was distracted by one of his other portfolios. Oh, the joys of small parties...

The judiciary on justice reform

The government's Criminal Procedure (Reform and Modernisation) Bill is currently before select committee. The bill would eliminate jury trials in most cases, while also eroding the right to silence by forcing defendants to effectively admit to elements of the case against them. While undoubtedly efficient, this is fundamentally unjust. But don't just take it from me - here's what the Chief Justice (on behalf of the Supreme Court, High Court, and Court of Appeal) had to say [PDF]:

The second matter concerns the requirement for notification of issues in dispute in advance of trial and also at the commencement of trial, together with related provisions providing for sanctions in the event of non−compliance both at sentence and by way of costs orders against defendants and their counsel. I have previously recorded my grave concern that these provisions are contrary to longstanding principle, being inconsistent with a defendant's right to have the prosecution prove its case beyond reasonable doubt, not being obliged to assist the prosecution by volunteering information. I appreciate that some defendants and counsel are guilty of abusing the system but, on balance, the judiciary is not persuaded that this provides good reason for the departure from basic principle which is involved in any requirement for advance disclosure of an intended defence.

And its not just them. The District Court [PDF] calls the idea of inferring guilt based on procedural failure to notify "conceptually incoherent, and therefore arbitrary". And they've basically put the government on notice that due to the likelihood that such procedural defect is the fault of the lawyer rather than the defendant, they are highly unlikely to infer guilt in such a fashion. The net result: the idea isn't just unjust, but it will also be ineffective.

[Graeme Edgeler has more on this at Public Address]

Inconsistent

Yesterday the government introduced its Criminal Procedure (Reform and Modernisation) Bill, which would restrict the right to trial by jury and force defendants to admit to elements of their crime, to Parliament. Today, Attorney-General Chris Finlayson declared it to be inconsistent with the Bill of Rights Act [PDF]. But not the bits you'd expect him to. Instead he focuses on minor issues around in absentia trials and retrials of acquitted defendants. On the core issue of the right to jury trial, he says it is "necessarily inconsistent", but doesn't seem to regard this as an actual problem, while he seems to have no problem with forcing defendants to identify issues in dispute i.e. admit some elements of a crime pre-trial.

On both issues, he relies heavily on UK law and jurisprudence that these limits are justified. This is a mistake. The UK is not a country anyone should hold up as a model for human rights. The fact that they restrict jury trial rights and allow retrials in high-publicity cases is simply further proof of this. The UK is what happens when an authoritarian, centralising government pursues a knee-jerk law and order agenda. It should not be used as justification for our government to do the same.

Against justice "reform"

This afternoon the government announced its plans to "reform" (in the 80's sense) the justice system. Ostensibly, this is aimed at making trials more efficient. In practice, it means a serious assault on the human rights of people accused of a crime.

The two most serious changes are a move to restrict the right to trial by jury and a requirement that the defence identify "issues in dispute". I've dealt with the former here, and I have not changed my mind on it. Anyone who thinks that three years' imprisonment is a "minor" penalty is smoking crack. Anyone who advocates that the right to trial by jury be restricted is clearly incapable of imagining that they might one day end up on the wrong side of a courtroom. And while the government can claim that

A fair trial is just as likely to occur before a judge alone as before a jury.

The fundamental problem is that people will not believe it. And that's obvious the moment you think about what happens on a jury. For a miscarriage of justice to occur in a jury trial, 12 (well, 11 with a majority verdict) people would have to be completely wrong. For it to occur in a non-jury trial, it needs only one: the judge. And if I'm ever in a courtroom, that's why I'll be wanting a jury: because it means there are that many more eyes on the case, looking for the holes. Juries are the ultimate bullshit detectors, and the ultimate check on state power, as the Waihopai Three's acquittal showed. And that is why the government wants to get rid of them.

The requirement that the defence identify issues in dispute OTOH is a gross violation of the right to silence. It forces the defence to effectively give evidence against themselves, in that areas not disputed are effectively admitted. It is also a recipe for lazy prosecution and potentially unsafe verdicts. Remember, in this country the prosecution has to prove every element of a crime beyond a reasonable doubt. Focusing only on "issues in dispute" will inevitably mean the crown fails to do that.

The Bill of Rights Act is very clear: no-one shall be compelled to be a witness or to confess guilt. That's exactly what Simon Power is proposing they be forced to do. It will be more "efficient" of course. So would forgoing trials entirely and assigning verdicts at random. But the court process is not supposed to be about efficiency and saving money - it is supposed to be about justice. And what we are seeing here is an erosion of justice so that National can give away more tax cuts to its rich mates.

But then, this is a party who can't even design a liquor control bill without turning us into a police state. So I guess we shouldn't really expect anything better from them.

Inconsistent

Yesterday, the government introduced its Alcohol Reform Bill to Parliament. The bill will repeal and replace the Sale of Liquor Act 1989 to implement some of the recommendations of the Law Commission, including a split drinking age and national opening hours (AKA the national bedtime), as well as a host of changes to the licensing and enforcement regime. Today, the Attorney-General found that some of those latter provisions are inconsistent with the Bill of Rights Act [PDF], violating the right to silence and the right to be free from arbitrary arrest and detention.

The big problems are around the power of arrest to enforce local authority liquor bans. The bill will turn violating such a ban into an infringement offence, but intentionally retain the explicit statutory power of arrest. So, you can be arrested and detained by police for an arbitrary period of time for an offence for which you can never serve jail, and which has been explicitly judged to be on the same level of seriousness as a speeding ticket, without any oversight whatsoever. Because there will be no formal criminal charges or court process, the normal protections around arrest (which assume there will be) will not apply. The result is to render the arrest arbitrary, and detention potentially indefinite.

The problem here, which the wowsers fail to understand, is that arrest is a criminal punishment. You get stuck in a cell, deprived of your liberty. And that requires serious justification. The normal justification is to ensure people show up for trial. But that justification is obviously absent for infringement offences, where there is no trial. In this case, the power of arrest is apparently driven by concerns about "public disorder". But there are already existing powers (e.g. offensive or disorderly behaviour, fighting in public) to deal with that. If it doesn't reach that level, sorry, but it is not a crime for young people to have fun in public.

Related to this, the bill includes a power for the police to demand from anyone believed to be committing an infringement offence "the name and address and whereabouts of any other person connected in any way with the alleged offence", on pain of a $5,000 fine. This is an obvious and clear breach of the right to silence. That right exists for very good reasons - basically to prevent the police from fabricating "confessions" or beating them out of people - and it should not be eroded, particularly for something so trivial. While its obviously in the interests of police to be able to find out who sold people their last drink, or who your mates you were dancing in that fountain with are, they should not be allowed to threaten us in any way in an effort to force an answer.

There are other problems - reverse burdens of proof upon people who have no ability to prove themselves innocent because the evidence is held by others is one egregious example - but the overall impression is one of an overreach by enforcement authorities and laws made primarily for the convenience of police rather than with a proper respect for the liberty of the public. And that just isn't good enough. The government and Parliament have a legal obligation to uphold and protect our rights. Instead, they're giving in to moral panic and engaging in lazy authoritarianism.

Coerced self-incrimination

The government tabled a new Search and Surveillance Powers Bill in parliament today. The bill is the result of a Law Commission inquiry into the issue. Much of it is simply a tidy-up and clarification of existing law which puts all search powers in one place. Some bits are concerning - for example, the s27 power to search any vehicle without warrant for stolen property, which is a significant expansion, or the s32 (2) (a) power for temporary closure of roads to prevent "public disorder" (which given the police's definition of public disorder as anyone being untidy or expressing a political opinion (rather than the actual criteria of a riot in progress), is a gross invitation to abuse). But the most concerning aspect is the new powers under subpart 11 for "examination orders".

An examination order allows the police to force someone to turn up and answer their questions, on pain of a year in jail if they refuse. Currently, only the Serious Fraud Office has such powers, in order to combat serious and complex fraud. The new version would place these powers under judicial supervision, so it is some improvement - but these orders are still a gross violation of the right to silence. Worse, they have been expanded to cover organised crime, and can be issued where the police suspect a criminal conspiracy. There's no requirement that the conspiracy be aimed at serious crime, only "a continuing course of criminal conduct", so there's potential for misuse from the start. But that's not the half of it. The real problem is that despite the presence of a specific clause preserving the right against self-incrimination, the police will be forcing people to incriminate themselves on pain of jail if they don't.

How so? Because getting the order requires the police to believe there is a conspiracy. One of the features of a conspiracy is that if you are considered part of the conspiracy, you are guilty of anything done by any other member in furtherance of the conspiracy's aims. So, while the police may be asking you about what other people have done, if they think you are part of a conspiracy with that person (and they are not required to tell you, nor are they forbidden from charging you with conspiracy later based on your answers), then any answer you give is incriminating yourself. So unless granted complete immunity, the only answer anyone should ever give if questioned under such an order is "I exercise my privilege against self-incrimination and refuse to answer that question".

The right against self-incrimination is one of the core protections of our justice system, and is protected both in the Bill of Rights Act and in our common law tradition. It protects us from abuses of power, and keeps the police honest. The provisions of this bill are an attempt to coerce testimony and force people to incriminate themselves. Parliament should reject them.

Rugby and the right to silence

I haven't commented on the English rugby team rape allegations because there doesn't seem to be much to say. A group of touring rugby players allegedly raped a woman and put her in hospital. They should be investigated, and, if the evidence supports it, prosecuted. While they've now left the country, in the absence of formal charges (or indeed a formal complaint from the victim - which is a big problem in many rape cases), there was no justification to detain them, and they can always be extradited if charges are subsequently laid. And while they remained silent, that is their right: in this country, no-one has to talk to the police.

However, I have noticed a curious double standard in regard to the latter. A couple of years ago, there were screams of outrage and calls for obstruction of justice charges to be laid when the parents of the Kahui twins refused to talk to the police about their children’s' deaths. There have been no similar screams in this case. Has the New Zealand public finally recognised the value of the right to silence? Or is it simply because the alleged offenders in this case are rugby players?

Justice and the right to silence

David Slack this morning has some pointed words for the Prime Minister in response to her comments on the Kahui acquittal. The short version? "Butt out". Politicians criticising judicial outcomes violates important principles such as the separation of powers and the independence of the judiciary and police. While people are angry that a crime has been committed but no-one has been held accountable for it, at the end of the day the basic problem is that the police didn't deliver the goods. While they had a prima facie case, they were unable to convince a jury beyond a reasonable doubt. It is thus entirely proper that Kahui goes free.

As with the police rape case, such acquittals are the price we pay for justice. "Better that ten guilty men go free than an innocent be unjustly imprisoned". Any lesser standard of evidence would undermine the integrity of our justice system, and transform it from a justice system into a punishment one - a sort of organised lynchmob picking out anyone who looked vaguely guilty and victimising them whether they'd actually committed the crime in question or not. That might satisfy the "hang 'em high" brigade, who are perpetually unable to look beyond their own sense of outrage, but it does not satisfy me. We have more than enough innocent people in jail already, and the cases of David Dougherty, Arthur Allan Thomas and Peter Ellis ought to give us grave thoughts about the direction the screaming mob want to take our legal system in.

As for the calls to remove the right to silence, as I have said before, these are both dangerous and authoritarian. The right to silence exists to ensure confessions are voluntary rather than being beaten out of people, and because in our justice system it is the crown, not the defendant, which must prove their case. Yes, removing it would likely result in a lot more "confessions" and convictions. They just wouldn't be of the right people. But the boys in blue wouldn't have to work so hard, and would have more time to spend down at the donut shop, so it's unsurprising they favour such a move.

Which brings me back to the real problem here: as I said above, the basic reason this case failed was because at the end of the day, the police failed to present sufficient evidence to convince a jury beyond a reasonable doubt (in fact, given how short it took them to deliver their verdict, I'd suggest the evidence was woefully inadequate). Maybe we should think about how that happened, rather than queuing up to undermine our justice system and give those same police free licence to string up anyone they want in future?

Taito Phillip Field and the right to silence

So, suspended Labour MP Taito Phillip Field is now refusing to be interviewed by the police. National is of course outraged, and trying to blame Helen Clark for it (of course. As opposition, they'd blame the government for the weather if they thought it would stick). Meanwhile, since it has so obviously slipped John Key's mind, I thought I'd remind people again: we have a right to silence in this country, and no-one, no matter who they are or what they are accused of, has to talk to the police. As the subject of a criminal investigation, Field is merely exercising that right - a right which exists to protect people from abuses of power and society from a police force which forces "confessions" - and he has every right to do so.

Meanwhile, I'm sure that Key's statement that "If Mr Field has nothing to hide, he would have no problem speaking to the police" will be very useful to Field's lawyer if he is every prosecuted, in arguing that he cannot possibly receive a fair trial due to widespread pronouncements from authority figures and assumptions about his guilt.

From what we've already seen about Field, we can conclude that he's not fit to be in Parliament. But it would be better for politicians to stand back and let the police conduct their investigation, rather than wading in and potentially undermining both it, and our human rights.

The right to silence

Retiring Auckland QC Kevin Ryan has proposed ending both the right to silence and the ban on introducing previous convictions as "evidence" at trial. Like DPF, I'm stunned. Both are cornerstones of our justice system, and vital protections against miscarriages of justice. The right to silence ensures that any confession is voluntary (rather than extracted under duress by police eager to boost their closure rate), and protects that other cornerstone of our justice system: that it is the crown, not the defendant, which must prove their case. The bar on introducing previous convictions ensures that cases are judged on their merits and the evidence before them - not on what else the defendant is accused of or has done in the past. While both clearly lead to frustration at people "getting away with it" (as for example in the case of the Kahui twins, or the police rape case), this is the cost of justice. Eroding them would undermine another of our core principles: that it is far better for the guilty to go free than see the innocent wrongly jailed. And that is a principle I'd think that Kevin Ryan of all people would understand.

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.

More on the right to silence

After a week of hysterical coverage, the Herald has finally got around to pointing out that it is not a crime not to speak to the police, and that the right to silence is fundamental to our criminal justice system.

Meanwhile, Labour's Russell Fairbrother appears to believe that effectively representing your clients and advising them of their rights is unethical behaviour, and that the Kahui family's lawyer should be struck off. I'd have thought that the reverse was true, and that a lawyer who failed to advise their clients of something as basic as the right to silence was guilty of gross negligence. But I guess standards are different when there are votes on the line...

Dangerous frustration

I haven't commented on the Kahui case because, bluntly, I loathe the entire genre of crime d'jour reporting, and don't want to encourage it. But I do have to comment on the statements politicians have been making over the Kahui family's silence and refusal to speak with police. According to the Herald, Maori party co-leader Pita Sharples said that the police should bring people in for questioning, while NZ First's Ron Mark has issued a press statement calling for them to be arrested for obstruction of justice. These calls are dangerous and authoritarian, and, if acted upon, would grossly violate one of the fundamentals of the New Zealand justice system.

I'm not going to be popular for saying this, but I think people need to be reminded: in this country, you do not have to talk to the police. There is a right to silence, both legal and practical, and a right against self-incrimination. The police cannot arrest you simply for refusing to talk to them, and it is not a crime to do so. And if you are arrested, you still do not have to talk to them, just as you do not have to give evidence at trial if charged. These rights are fundamental to the New Zealand justice system (and to those across the civilised world), and they exist for very good reasons - chief among which are protecting people from abuses of power and stopping the police from compelling testimony and forcing "confessions".

It is frustrating when people do not come forward with evidence about a crime, and politicians naturally want to be seen to be "doing something" about such a high profile case. But the best thing they can do is shut the fuck up and let the police get on with their work. We should not ignore one of the fundamental safeguards of our justice system simply to relieve politician's and the public's moral panic.