THE PRESS TUESDAY, SEPTEMBER 26, 1989. ‘Helping with inquiries...'

Press, 26 September 1989, Page 12

THE PRESS TUESDAY, SEPTEMBER 26, 1989. ‘Helping with inquiries...'

Parliament cannot ignore the clear warning from the Court of Appeal about police questioning of people in police custody but not formally arrested. In a judgment released last week, the Court of Appeal’s president, Sir Robin Cooke, said that the police were ignoring the rules for questioning suspects and that this was putting convictions at risk. “Convictions otherwise'fully justified will be in jeopardy if the issues about detaining and questioning suspects are not faced by the police and Parliament,” Sir Robin said. At issue is the detention of suspects for interrogation when the police are not prepared to arrest them and do not have enough evidence to arrest them.

In New Zealand the police have no power in common law to detain suspects for questioning. However, the principle has been long established that, if people are in custody though technically not arrested, they have the same right as arrested people not to be cross examined. The Court of Appeal noted that “in case after case” coming before it, the police had disregarded or attempted to circumvent this principle. A warning to the police last year against stretching the law in this way appeared to have drawn no response, either from Parliament or the police, Sir Robin said. He said that there might be a need for the police to have the power to detain people for questioning, but added that this was a matter for Parliament to decide and that proper safeguards would have to be considered.

This is plain speaking. The police can hardly overlook such a forceful statement of the Court of Appeal’s determination. Perhaps more important will be the attention given to this by the other courts and by defence lawyers. The clear indication that the Court of Appeal is prepared to quash convictions if confessions or incriminating evidence have been extracted improperly will alert lower jurisdictions and the legal profession to the matter. The added scrutiny from defence counsel and the courts -should serve to discourage the police from stretching the law; but this does not absolve Parliament from the duty placed squarely upon it by the Court of Appeal.

In general terms, the police in New Zealand may not detain people without arresting them; this freedom from unlawful detention is an important part of civil rights. Similarly, the way in which police may question people is prescribed in some detail.

These are characteristics of a system that does its utmost to ensure that its citizens are protected from the trappings of a police State — things such as imprisonment without trial, torture, and citizens disappearing without trace after the midnight knock on the door — and they are protections to be guarded keenly. Nonetheless, Parliament has decided from time to time that special circumstances warrant laws that impair, if only slightly, citizens’ liberty. x

The powers of detention and search for internal concealment of drugs are one example. In this, Parliament was reflecting the concerns of the community, and dealing with a problem that the coinmuriity regards as very serious. It might be tHa,t, after, proper deliberation, Parliament is of a'mind to give the police the power to detain suspects for questioning actually making arrest, though Parliament would doubtless set limits to the practice and rules for judging their application. In view of the public’s growing unease about the increase in reported crime, particularly violent crime, it is quite possible that Parliament would find general support for such a change to the law, at least in respect of police inquiries into serious criminal offences.

Even if: the public mood supports a change, Parliament would have a responsibility to warn the community of what protections citizens would be surrendering in the name of more efficient law enforcement. It would not be enough for Parliament to simply bend to demands for a get-tough campaign on serious crime by whittling away at the rights of the law-abiding without fully explaining the consequences. No doubt the police have difficulty from time to time under the existing arrangement: experienced criminals are fully aware of how they can use the system to frustrate inquiries and the collection of evidence against them. If Parliament is persuaded that the police are handicapped in their efforts by the requirements of the law, the law needs to be changed. If thugs whose guilt is obvious are likely to have their convictions quashed on procedural grounds, the law obviously needs review. If, however, Parliament considers the existing arrangement is satisfactory, it would still be wise to clarify the law. Whatever the outcome, it is plain the time has come for Parliament to turn its attention to police powers to detain people who are “helping the police with their inquiries.”