Wednesday, September 17, 2008

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.