Scoop Election 08: edited by Gordon Campbell

The Erosion Of Justice

July 6th, 2009

justice a prisoner

As the civil rights we enjoy get whittled away, the pattern is becoming very familiar. Initially, fresh powers of search, detention, use of secret evidence etc are sought by the authorities for what is claimed to be a very narrow and specialised reason – eg, to combat terrorism or certain types of crime that allegedly cannot be met by the usual methods of policing. All too soon, those powers then get extended to a wider and wider sector of society.

Last week for instance, Justice Minister Simon Power announced a new array of crime-fighting measures – in a package that included the erosion of the accused’s right to remain silent, and thus not able to be coerced into self incrimination. As usual, it was claimed that such measures would be limited to particular types of investigations, and require court approval etc. It was also claimed that such measures would be similar to the powers to compel testimony that are already held by the Serious Fraud Office.

However, only two or three years ago, the existence of those particular SFO powers was being treated as an outrage, and a reason for abolishing the SFO altogether. In a brilliant Sunday Star-Times article on the subject in 2007, Jenni McManus and the law experts she consulted came close to predicting the current turn of events:

Much of the criticism surrounding the SFO centres on its extraordinary (some say draconian) powers, enshrined in the Serious Fraud Office Act 1990….Most controversial is Section 5 – the power to require documents to be handed over if the director has reason to believe they may be relevant to any suspected fraud investigation – and Section 9, effectively removing the right to silence (or, more correctly, the privilege against compelled self-incrimination) for anyone the director believes can usefully answer questions relevant to an investigation. The answers, however, will not be used in evidence in court if the suspect’s evidence does not contradict his original story…..

“The powers are appropriate for fraud [ said then SFO chief David Bradshaw] but may not be appropriate for any other offences. Our witnesses aren’t interested in the right to silence. They just want to be able to feel comfortable – banks and accountants and people like that – that they can give us this information and nobody can point the finger at them for talking to the SFO. We have to have compulsion for people to talk to us because otherwise they wouldn’t.”

Maybe not, says Auckland University associate law professor Scott Optican, but there are other, equally important competing rights at stake. Many of the SFO’s powers breach the Bill of Rights Act and in his native United States would be struck down by the courts as unconstitutional.

The updated Evidence Act, due to come into force later this year, will cure Bill of Rights Act breaches when it comes to the compelled production of documents, as pre-existing documents will no longer be covered by the privilege against self-incrimination.

But forcing people to front up and answer questions is a different matter, Optican says. It includes not simply compelling the suspect to utter self-incriminating words, which breaches their right to refuse to co-operate in an investigation, but also includes information which could be used to form a link in the investigatory chain. Moreover, the SFO is the only regulator with this power. Not even the police can compel people to answer questions or to co-operate.

“Effectively the SFO is asking you to participate in its own investigation,” Optican says. “I can think of lots of police investigations where there is key information in people’s minds that the police might want to know. There are very good policy reasons for not doing this. It tramples on rights that are equally worth protecting.”

Optican says it seems the SFO is saying compulsion is an effective tool and, because serious fraud is difficult to investigate, the office should have this power. “But the justifications are pretty thin on the ground. The police would like this power too. What is so unique or special about white collar crime? Is the SFO saying it’s harder to investigate and more serious than murder?”

Optican was eerily on target. The Police did indeed want those same powers, and Simon Power has now handed them over. It should also be noted that this erosion of the right to remain silent is occurring in tandem with the erosion of the accused’s access to the evidence for the charges against him or her. Again, measures meant to combat the particular threat posed by terrorism, are being extended. Under the still pending Immigration Bill, secret evidence can be used far more widely, and so will the special advocate ‘safeguard’ – a figleaf for the erosion of due process rights that has been roundly criticized in the UK and Canada.

The problem with the Immigration Bill is that events have moved on a great deal since it first became a twinkle in the eye of immigration officials three or four years ago. The Immigration Service itself has become mired in scandal and has received a damning evaluation by the Auditor-General. To the point where you might have thought the Immigration Service would now be the last government department that any sane politician would think of granting wider powers of search, detention and interrogation to its staff – much less expect the courts to rely upon any secret evidence that it produces. The current Prime Minister has after all, called the Service ‘a shambles.’ So why extend its powers?

Overseas, the pendulum has swung back against the use of secret evidence and a reliance on the special advocate system. Last month, the House of Lords unanimously condemned the use of secret evidence, when issuing a major decision on the legality of control orders.

As Lord Phillips, the senior Law Lord said at para 63 of the judgement : ‘A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him..’ Lord Hope of Craighead added : “The principle that the accused has a right to know what is being alleged against him has a long pedigree …. The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him (para 78). Such guarantees do not exist under the Immigration Bill in New Zealand, as currently framed.

Since in New Zealand, anti-terrorism law has been used to justify anti-democratic measures, Lord Hope’s further comments are highly relevant :

The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him (para 79).

The slow creep of complacency, indeed. The Lords ruling happened to coincide with the release of a major report on the history and use of secret evidence, compiled by Justice, the leading United Kingdom human rights organization. Over the course of its 238 pages, the Justice report traces the growth of secret evidence in British courts from the Star Chamber in the 17th century, to its use in British courts over the past decade. Since 1997, secret evidence has been used in a wide and slowly expanding range of court proceedings – from deportation hearings before immigration tribunals, to pre-charge detention hearings in terrorism cases, employment tribunals, asset-freezing cases, parole board hearings, and the control order cases in the High Court and Court of Appeal.

Defendants in some criminal cases, the Justice report continues, are now being convicted on the basis of evidence that has never been made public. Criminal courts have issued judgments with redactions to conceal some of the evidence relied upon. Evidence from anonymous witnesses has also been used in criminal trials and during the so-called ASBO, or Anti-Social Behaviour Order hearings.

Plainly, the erosion of civil liberties and legal rights is a very slippery slope. While of concern in isolation, the impact of each measure has to be considered in conjunction with related attacks on the right of the accused, that only compound the effect. So far this year for instance we have seen the current government oversee the erosion of the power to remain silent. It has also enacted changes to the need for a unanimous decision by a jury of twelve of one’s peers, and also the abolition of the defence’s automatic right of access to witnesses in oral depositions during pre-trial proceedings.

Video-conferencing of evidence is also to be trialled, in order to try and minimize the cost of court sittings, Inevitably, this will erode the ancient right of a defendant to look his or her accusers in the eye.

We are seeing an across the board change in the rights of those brought before our courts – and every one of the changes is occurring on only one side of the ledger, to whittle away the rights of the accused. The moves outlined happen to co-incide with – and in some cases will compound – the effect of the last Labour government’s Immigration Bill. As I’ve said, this Bill will enable the wider use of secret evidence and special advocates and will extend the powers of search and detention held by a new and highly dubious group of Immigration Service officials. For all their avowed concern about the rights of the individual, neither the Act Party nor National, have seen fit to oppose the Bill.


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    1. 9 Responses to “The Erosion Of Justice”

    2. By stuart munro on Jul 6, 2009 | Reply

      It’s an interesting issue, but there seem to be a few too many threads tied together here. The extension of police powers to this degree is indeed ominous, and it is probably inevitable given the pattern of decades of chronic economic neglect and incompetence. NZ is failing, and our leaders have no intention of setting it right. This means they will soon be faced with the same choices as Mugabe, to hold power by force, or be held accountable. I doubt they have the strength of character to endure the latter.
      But immigration law is a fairly different matter from criminal law, in part because presumptions like the privilege against self incrimination are in principle less necessary for people who are not to be imprisoned if their case fails. In practice, the power is probably unwise, as the Zaoui case showed the ambition of officials to be corrosive of natural justice and a tremendous waste of money.
      But requesting a significant disclosure of previous activity is not, in more ordinary immigration situations, improper, and an applicant that begins their admission process with a hostile refusal to explain why they are coming, who is not a genuine political or other refugee, should not ordinarily be a candidate for entry.

    3. By Rick Shera on Jul 6, 2009 | Reply

      Actually, they removed that privilege against compelled self-incrimination for computer stored or accessible information back in 2003. The way it was done compellingly substantiates your point however, since it was introduced via the “Terrorism Suppression Bill”. OK, maybe you could argue that terrorists deserve to have due process abrogated, but here’s the rub. In fact, the provision was added as s198B of the Summary Proceedings Act so that rather than just applying to terrorists, it could now be applied to any manner of computer stored or accessible evidence. All that is happening now is that this provision, like the other mish mash of search and surveillance provisions, is being put into one place (a good thing).

      So, you see, our arcane legislative process took away what most would consider a fundamental right 6 years ago, without us even realising it!

    4. By Mike on Jul 6, 2009 | Reply

      Well said Stuart, but I think the point of Gordon’s article is the introduction of those compulsions into normal criminal law, under the auspices of the Evidence Act.

    5. By George D on Jul 7, 2009 | Reply

      What do we bet that Phil “Lock’em up” Goff supports this bill? I’d say the odds are much better than even.

    6. By Benjamin Wright on Jul 7, 2009 | Reply

      Watch this trend: Electronic records like e-mail and text messages are revolutionizing white collar investigations. –Ben

    7. By David Scott on Jul 7, 2009 | Reply

      Although, I personally am so far to the left that even the democrats appear to me to be “right-wing,” I consider myself to be a strict constitutionalist. It is my opinion that since its inception there has been an organized and systematic assault by the conservatives in the United States on the civil liberties written into the US Constitution. The “War on Drugs”; “War on Terror”; “War on Communism” and a host of other wars waged by the right wing are really nothing more than a War on People–an excuse to erode civil rights to the point of non-existence. I invite you to my website devoted to raising awareness on this puritan attack on freedom:

    8. By Bomber on Jul 8, 2009 | Reply

      Brilliant article as usual Gordon, I wrote a similar one at Tumeke pointing out the new powers the Police were trying to obtain to break into homes and film without judicial oversight. The Police reserved a chunk of the radio spectrum from the Economic Development Ministry in 2006 because they intend to be using wireless broadband and remote video surveillance equipment to conduct “covert operations” within 5 to 10 years suggesting that the Police are not going to use these powers for “certain urgent or emergency situations” at all, they intend to use them as a matter of course and the weak oversight being given here to allow cops to spy in our homes is an outrageous intrusion of Police Powers into our personal lives.

    9. By Bob McMurray on Oct 30, 2009 | Reply

      As a general comment but especially with reference to David Scott’s comments on 7 July, I have noticed a definite decline in the preparedness of states and governments generally to put up with legal barriers which have existed for centuries in the criminal justice and social systems and in democracy generally. This trend is not as extreme in New Zealand compared to other countries as far as I can determine. One only has to look at the UK to see a decrease in the willingness of the authorities to tolerate legitimate dissent. You can’t demonstrate with a mile or so of No. 10 Downing St, for example. And Barak Obama still hasn’t completely done away with the Military Commissions which Bush revived in the wake of 9/11. I foresee a steady decline in the rights and freedoms which we have enjoyed in British law for centuries and corresponding changes to the legal system. In fact, it wouldn’t surprise me if we gradually move towards the European/Roman law system. Probably the next change will be the length of time a suspect can be held before charges have to be brought by the police or other authorities. (I live in Germany and theoretically you can be held indefinitely while investigations against you proceed. In one case a suspect was held for two years before being charged. And it’s legal.) You get the idea.

    10. By John Bosworth on Jul 6, 2010 | Reply

      I agree with you Bob. I think it’s amazing that they can hold someone for Two years before charging them though.

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