Tuesday, September 27, 2022

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.