The National Party announced a policy that proposes to remove the right to silence that can be invoked by adults who may (or may not) have information surrounding the cause of death of a child under 12.
The term “right to silence” has a number of meanings at law.
One invocation of it is at a trial. An accused person cannot be compelled to give evidence. He or she may choose to do so, but that does not mean that they concede that the Crown has proven its case or that there is a case to answer.
There is a reason for that and it involves a combination of the presumption of innocence (a person is innocent until proven guilty) and the burden of proof (the prosecution must prove its case beyond a reasonable doubt). The prosecution cannot rely upon an accused person to provide evidence of guilt. That must be done independently of the accused.
Another invocation of the right to silence may be found in section 23(4) of the New Zealand Bill of Rights Act which says that those arrested or detained for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
That is the right to silence upon arrest or when a suspect. A different flavour of the right to silence which is associated with the privilege against self-incrimination
Then there is what could qualify as a right but is more an absence of an obligation. No citizen can be compelled to provide information to the police unless in circumstances authorised by law. An example may be the obligation of a driver to provide name, address and drivers licence to a police officer.
What is proposed has nothing to do with the “right to silence” enjoyed by suspects or those accused of a crime. What is proposed is to create a wider obligation in certain circumstances to provide information to the Police and for a penalty to be imposed if that obligation is not met.
As a concept that is unobjectionable. The societal interest in the detection of a crime involving the death of a child outweighs the interests of a citizen to refrain from telling what he or she knows.
But there is a problem. If the police have the power to compel adults present at a scene of a child death to tell what they know it is highly likely that one of those adults may be the perpetrator. Under the present proposal that person may be unable to invoke their right to silence as a suspect. That would be a significant erosion of the rights of an accused.
But wait – there is another problem. How can the Police prove beyond a reasonable doubt that an adult present actually knew anything was going on and had information that might identify the perpetrator if that person remains silent or claims to “know nothing”. In such a case you have potentially an unenforceable law.
But wait – there is another problem. Police arrive at a scene where there is an under 12 unexplained death. There are 6 adults present. 3 of them have just arrived and literally know nothing. Two of them were in another room asleep and literally know nothing. The remaining person is the perpetrator (this is where being the “eye of God” or the creator of the scenario has an advantage) who decides to speak up and points the finger at someone else (who may or may not be present). What then? And that is not a scenario. It has happened.
Compelled speech – especially to representatives of the State – is always dangerous and is fraught with problems. The loathing that a liberal democracy has for compelled speech derives from a long and bitter history of State repression, injustice and at times torture.
Conceptually the objective is laudable. Practically and philosophically it has some significant difficulties along with significant erosions of long-standing principles of criminal law and procedure.
But we are in an election cycle and such dog-whistle policies seem to be the order of the day.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced
There is a reason for that and it involves a combination of the presumption of innocence (a person is innocent until proven guilty) and the burden of proof (the prosecution must prove its case beyond a reasonable doubt). The prosecution cannot rely upon an accused person to provide evidence of guilt. That must be done independently of the accused.
Another invocation of the right to silence may be found in section 23(4) of the New Zealand Bill of Rights Act which says that those arrested or detained for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
That is the right to silence upon arrest or when a suspect. A different flavour of the right to silence which is associated with the privilege against self-incrimination
Then there is what could qualify as a right but is more an absence of an obligation. No citizen can be compelled to provide information to the police unless in circumstances authorised by law. An example may be the obligation of a driver to provide name, address and drivers licence to a police officer.
What is proposed has nothing to do with the “right to silence” enjoyed by suspects or those accused of a crime. What is proposed is to create a wider obligation in certain circumstances to provide information to the Police and for a penalty to be imposed if that obligation is not met.
As a concept that is unobjectionable. The societal interest in the detection of a crime involving the death of a child outweighs the interests of a citizen to refrain from telling what he or she knows.
But there is a problem. If the police have the power to compel adults present at a scene of a child death to tell what they know it is highly likely that one of those adults may be the perpetrator. Under the present proposal that person may be unable to invoke their right to silence as a suspect. That would be a significant erosion of the rights of an accused.
But wait – there is another problem. How can the Police prove beyond a reasonable doubt that an adult present actually knew anything was going on and had information that might identify the perpetrator if that person remains silent or claims to “know nothing”. In such a case you have potentially an unenforceable law.
But wait – there is another problem. Police arrive at a scene where there is an under 12 unexplained death. There are 6 adults present. 3 of them have just arrived and literally know nothing. Two of them were in another room asleep and literally know nothing. The remaining person is the perpetrator (this is where being the “eye of God” or the creator of the scenario has an advantage) who decides to speak up and points the finger at someone else (who may or may not be present). What then? And that is not a scenario. It has happened.
Compelled speech – especially to representatives of the State – is always dangerous and is fraught with problems. The loathing that a liberal democracy has for compelled speech derives from a long and bitter history of State repression, injustice and at times torture.
Conceptually the objective is laudable. Practically and philosophically it has some significant difficulties along with significant erosions of long-standing principles of criminal law and procedure.
But we are in an election cycle and such dog-whistle policies seem to be the order of the day.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced
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