Lawyers against body-search move

Press, 12 August 1980, Page 7

Lawyers against body-search move

PA . Auckland Recommendations by the Criminal Law Reform. Committee to the Minister, of Justice (Mr McLay) that the police be given new powers requiring suspects to submit to bodily examination and sampling will, if' implemented, result in “major interference by the State with the individual," according to the Auckland District Law Society. The Government: has not yet acted on the proposals, which would allow i the police to examine in detail the naked body of a suspect and take forcibly, if resistance is offered, blood, saliva, and hair samples, dental impressions and. finger, palm, and foot prints. The public issues committee of the law society said in a nine-page report that the proposals should not be implemented without further study. “If it is finally decided that such procedures are jus t i f i e d , more oom-

prehensiye safeguards,, especially some alteration of the discretion to exclude evidence, .should be provided,” said the lawyers. Two issues were raised by the proposals: the question of applying such compulsory bodily’ examination and sampling and whether it was proper to authorise “highly intrusive and possibly painful and humiliating procedures” against a person. The law in New Zealand had always been that, with a few minor exceptions, until a person was arrested he was free to go about his business •. without interference. Nobody was compelled to answer questions or undergo any examination or detention by the police before arrest, After his arrest, a person might be required to provide his particulars and be fingerprinted and photographed. “Until policemen think there is enough evidence to charge a person with a

crime, by publicly accusing him, that person may not be interfered with,” said; the lawyers. “The Criminal -Law Reform Committee seems to be saying that now the police ought to be .able .to detain ana examine a person before that point ' is reached.” .’ The lawyers said the proposals suggested major interference-' by the State with the individual. This did not automatically condemn the move .because “we recognise today that . many socially- beneficial measures require such interference. But the; fact that the intrusion proposed . is so major means that there is a heavy onus upon the proposers to demonstrate the need for it” The Criminal -Law Reform

Committee; justified the .proposals by saying that because forensic science now offered useful techniques of investigating crimes and' individual rights were no more absolute , than society's need for law enforcement, such techniques should., be used. Bui no- studies, examples, or statistics had been quoted by the committee to suggest that a significant number of investigations had been frustrated because such tech--niques were not used. - “If the public could be confident .. that the investigation of crime would be significantly improved dr expedited, that a considerable number of unsolved cases could be. solved, then it might think this is an advantage to society worth

the cost of liberty,” said the lawyers. “But in the absence of this type of information it is difficult to make this decision, so difficult that perhaps ,we should err on the side of caution and maintain the status quo.” The lawyers said that in the United States evidence obtained illegally by unauthorised searches was excluded by the. courts. In New Zealand the exclusion of such evidence was not automatic .but depended on the exercise of a judge’s discretion.

The New Zealand police had an exceptional record of freedom from corruption and malpractice. “Yet we must always ba careful that we do not move towards a less open, less democratic situation by a series of overhasty responses to what are suddenly.seen as problems.” There was no doubt that the police and other officials had had their powers to stop, search, and otherwise investigate individuals broadened in recent years. But there had been no careful - and reasoned investigation into the need for such extensions of power. Last year the police had been given power to search

any arrested person: previous powers' had related to suspected evidence or weapons. The police last year had also been given the power to refuse bail for up to two days to an arrested person refusing to comply with internal bodily searches for drugs. Other legislation last year had given the police powers to stop and search vehicles and persons for offensive weapons, supposedly to control gang activity, and allowed the police to “close off roads on the basis. of fairly wide criteria.'” Searches of the body cavities, by force if necessary, of suspected smugglers, and for listening devices and similar instruments, had been allowed by legislation in 1978 for the police and 'in 1977 for the Security Intelligence Service. “We suggest it is time that lengthy consideration be given to the direction of policing and further intrusive investigation procedures not be put in place until such investigation has taken place,” said the lawyers. “Any further extrusions to police powers should be examined-very critically indeed.”