The Criminal Procedure Bill

Derek Cheng in the NZ Herald reports:

The Government’s stalled reforms of the justice sector have been given an unusual lifeline with a proposal to take the controversial issue of the right to silence out of Parliament’s hands and leave it to a group of legal experts.

The Criminal Procedure (Reform and Modernisation) Bill is likely to have its second reading this week, having spent a month on the order paper while Justice Minister Simon Power sought the numbers to pass it.

The bill is a shake-up of the criminal justice system and includes the removal of an accused’s right to remain silent and not have that held against them.

As it stands, the bill would require the defence to disclose to the prosecution before a trial all issues in dispute. Failure to do so would enable a judge or jury to infer that the accused is more likely to be guilty.

At present, a defendant can say nothing, leaving the case to the prosecution to prove beyond reasonable doubt.

The Labour, Green and Maori parties are strongly against the bill in its present form, but the Herald understands Mr Power has won the support of United Future leader Peter Dunne and Act MPs Hilary Calvert, Heather Roy and Sir Roger Douglas by removing the disclosure regime from the bill (Act MPs are not “whipped” to vote as a caucus).

The ability of a judge or jury to infer a greater likelihood of guilt from non-compliance would also be removed.

A new clause would allow the Rules Committee, a panel of legal experts chaired by Chief Justice Dame Sian Elias, to decide if a disclosure regime should be enforced, and if so, how.

I understand there is considerable tension in ACT over this bill.  If Calvert, Roy and Douglas vote for the the bill, they will be effectively crossing the floor against their party as the ACT Board has voted to oppose the bill, and it is also opposed by Leader Don Brash, former Leader Rodney Hide and Parliamentary Leader John Boscawen.

It raises one of the criticisms of MMP, where you have List MPs voting against the wishes of their party.

Now I have to say that by referring the disclosure regime to the Rules Committee, it almost guarantees it will not proceed as Dame Sian submitted on behalf of the high court, appeal court and supreme court judges against the disclosure regime. Interestingly the District Court Judges (who actually hear most of the trials) were in favour of a disclosure regime.

But even though it is unlikely to proceed, there are valid constitutional issues about whether something as fundamental as the right to silence should be decided by the High Court Rules Committee, rather than by Parliament itself. You normally delegate technical non-controversial issues to outside bodies – not issues affecting the Bill of Rights!

The other issue is about these changes being negotiated outside the select committee process, rather than through the select committee. Substantive changes at the committee of the whole stage are best avoided if possible.