Legal Beagle by Graeme Edgeler

I've been thinking of posting this for a while. Now seems a good time.

We often overlook the incredibly important part churches play in our society; that they are around doesn't just benefit those directly involved in them, or who receive their help and charity; that churches have played the role they play – that they have done their small bit to diminish the effects of grinding poverty – that they have pushed and prodded society and the government to be more compassionate – is of substantial benefit to society as a whole.

And it just doesn't seem fair that we all benefit from their existence, but don't all contribute to them. The freeloaders in society – most of us, I fear – gain these substantial benefits but offer no assistance: I wonder if it isn't time for a little more universality. Given the role they play, why aren't all required to play their part?

It sounds outlandish, but it would hardly be a new – a number of European states have state churches – section 4 of the Danish Constitution makes that pretty clear:

§ 4
The Evangelical Lutheran Church shall be the Established Church of Denmark, and as such shall be supported by the State.

Indeed, many European countries have Church Taxes. In Iceland, ministers of the state Lutheran Church are government employees, and all citizens pay a few hundred dollars a year in church and cemetery taxes, but the State has taken the sensible step of allowing people to choose to not fund the state church, but some other recognised church or religious organisation (or even the University of Iceland) instead. This is yet a further sensible mechanism to ensure that freedom of conscience and freedom of association are maintained. Those who strongly object to joining the state church can go through the process and opt out.

Now all members would be required to contribute – but it wouldn't even have to be nearly as much as a tithe, because churches would have many more members than they do now overheads would come down. Think of all the wonderful extra things churches could do with universal membership! With a much greater (i.e. any) use of volunteer labour, money spent on administration in government provision of welfare could substantially decrease. Through these mechanisms additional state assistance could be provided to ensure even fewer needy fall through the cracks. Our churches could expand their outreach further into the community – they wouldn't replace government-provided welfare, but could supplement it, operating from within communities, rather than imposing on them from outside.

Those who fully opt out obviously shouldn't get their money back – that wouldn't be fair – but if their deeply-held philosophical objection can be maintained, there seems no reason why their funding can't bypass the churches and go directly to the causes the churches support.

And the others – those who don't fundamentally object to belonging, but just aren't particularly enthused about taking part – won't have to. This isn't state-mandated faith – that would be unconscionable – just universal membership of churches. Their membership enables churches to continue – and expand – their good works, and to advocate for the interests of their members, but doesn't require anything like active participation. The whole of society benefits and no-one is forced into anything they'd disagree with. A real win-win.

Europe has lead the way. All it takes is a little imagination.

p.s. A follow-up piece will appear later today or some time tomorrow morning.

In September of 1997 a student protest held in the grounds of Parliament led to the arrests of 75 people for trespass. Twelve years on, 41 of those students (who sued the Speaker and the Police) will receive apologies and cash settlements of between $2500 and $5000.

But this settlement, whilst important – apologies for official misuse of power aren't common and are exceedingly rare alongside cash settlements – is more of an endnote. The important constitutional consequence of the arrests arises from the criminal prosecution that followed (over much more quickly). It did get to the Court of Appeal, but the student protesters won from the District Court up. They may have met all the requirements of the offence of trespass (been somewhere, been warned to leave twice by (a delegate of) the occupier, refused to do so, etc.) but, basically, they got the warning to leave thrown out.

An occupier has the right to ask people to leave land they control, but the courts decided that because Parliament grounds were a public place, and the exercise of control over them was the exercise of public power, the Speaker in making the decision to ask the protesters to leave had to consider the Bill of Rights. And in requiring them to leave, he infringed on their rights of freedom of speech and protest and assembly more than was permissible in the circumstances. The warning to leave was invalid, and without a warning to leave there is no criminal trespass.

The Beggs case (named after the Salient journalist among those charged) establishes the general proposition that not only must rules themselves be consistent with our fundamental freedoms, the use of general powers by people or bodies exercising public power must be consistent each time they are exercised. The power of the Speaker to exclude people from Parliament grounds, with the consequence that those who ignore the warning to leave can be arrested and charged, has been exercised lawfully on many occasions, but when that power was used to stifle political speech and peaceful assembly in 1997 it went too far. The power still exists; it's still found in the same place in the same place in the Trespass Act; but its exercise in now circumscribed elsewhere for those exercising public power.

When you think about it, it's not all that surprising. We passed a Bill of Rights Act to constrain government excess and, while there is an express exception for legislative excess, the general idea is that Parliament passed a law, and those to whom the applies (those exercising public powers) must follow it. And they follow it by ensuring that in the exercise of their powers they don't infringe our rights more than is demonstrably justified in a free and democratic society.

This rule doesn't only apply to the exercise of the rights of an occupier of land under the Trespass Act, but the exercise of any right. We are talking rights that you or I could exercise without a second thought: the right to ask someone to leave our property; and, I'd suggest, the right to send takedown notices. My legal practice isn't in intellectual property, but that there isn't a parody or satire exception in our copyright act is reasonably well known. However, when we're talking about enforcement of intellectual property rights by those exercising public powers, I'd argue the affirmation of the right to freedom of expression in section 14 of the New Zealand Bill of Rights Act is all we need. I don't believe it's been tested in New Zealand, but I think one could make a pretty strong argument that it could be an unreasonable limitation on the right to freedom of expression if a government agency were to use a copyright or trademark to quell political speech.

The Government has a right to protect its intellectual property, just as the Speaker had a right to warn those student protesters to leave. But neither can ignore the fact that Parliament passed a bill of rights. Their exercise of powers in enforcing these rights is subject to a legislative requirement that their actions not limit the rights of more than is justifiable in a free and democratic society. Limiting student protesters to the grass area behind metal barriers and away from the direct forecourt at Parliament is a probably reasonable limit, asking that there be an explicit disclaimer on a parody website is probably a reasonable limit. But when someone goes further than that – and it seems likely someone will – it may come back to bite them. Even if it takes 12 years.

The news that section 92A is likely gone, or neutered, is great – although I'm not convinced that it is as bad as was being made out. I've noted my concern over the strained interpretation in comments here and on other 'blogs before, but Steven Price puts it much better than I have :

An ISP that simply terminated on the basis of two or three allegations would surely not be implementing its policy reasonably, and termination would be inappropriate. True, this provision is awfully vague (which may also raise Bill of Rights issues, actually). Yes, it gives quite a lot of wiggle room to ISPs (though they are not likely to try to implement it against their clients’ interests). But it does not require – or even permit – guilt by mere accusation.
...
Throw in the new Telecommunication Carriers' Forum draft on how this law is likely to work in practice and we move even further away from guilt by accusation. What this draft gives us is “innocence by denial”

[emphasis added]

But as good as the news is, I'm more than a little disturbed at how it came about. Not that it came about because of citizen action, but the reaction itself. The Herald article breaking the story on Monday began:

Prime Minister John Key has announced the controversial Section 92A law, which has been widely condemned by internet users, is to be delayed. It will go on hold until March 27 while work is carried out on a voluntary code of practice.

If no solution is reached by then it will be suspended.

Suspended. Not repealed. Not even (the still constitutionally dodgy) further delayed. Suspended. You know, I'm pretty sure the Government doesn't have that power. Parliament makes the laws. The Government administers them.

True, the Copyright (New Technologies) Amendment Act 2008 did empower the Government to say when this section would enter into force, but it didn’t delegate the power to decide whether the section would enter into force. The Legislation Advisory Committee has this to say about laws which delegate to the executive their commencement:

As a general principle, the commencement of legislation should not be delegated because of the risk that the will of Parliament may be frustrated by an Executive that no longer supports the policies in an Act.

It’s as if they were warning about this very situation. Certainly, Parliament can do what it wants, but even when it passes a law and delegates its commencement, there is an expectation that the law will come into force at some point in the future. No matter how stupid the law, it was the democratic will of Parliament that it be the law. And, until Parliament does something about it, that will remain the case. Rather than asking Parliament to repeal or amend s 92A the government may just sit on it – continually delaying its implementation until who-knows-when. That would be wrong. It would be wrong if I supported the law, and it is wrong even though I don’t.

George W. Bush took hell for issuing signing statements refusing to implement pieces of the law that Congress had passed ... and he claimed his power to do so arose from the US Constitution. From where does the power to “suspend” s 92A of the Copyright Act arise?

I'm probably overstating the problems – parliamentary democracy isn't under threat. From a democratic standpoint, the fact that there probably isn't great support within (or outside) Parliament for s 92A, mitigates the outrage. That's also not really the point. It wasn't the point in the action that led to Fitzgerald – which followed an election victory fought over the very law Muldoon purported to suspend. Even then, the Fitzgerald involved suspension of a law in force, where this does not. But I'm still uneasy. There was probably popular (if not particularly strong) opposition to the Civil Union Act; I imagine there would still have been quite an outcry if a politician had come along and said 'yes, Parliament passed this, but people have protested and brought their concerns to me, so we won't be implementing it while we review what to do about it.'

Not much will likely result from this, but I wonder what happens if, in a year's time, we're still in this holding pattern. Does an APRA-initiated judicial review force the Government's hand? Do we really want to find out?

I think it fair that over such an issue as this, given the comments that are to follow, that I start my post with a upfront statement of my view.

I oppose a three-strikes law - I'm pretty comfortable with our jury system, and a system that allows judges who have heard all the evidence to ... um ... actually judge. With any system so rigid as to require, in all instances, a set sentence for an offence, there will undoubtedly be injustices. The closest I think I could come to supporting a three-strike law would be one in which the option of a harsh sentence for a third offence was available to a judge. Which doesn't really count, because that's pretty much already the case.

But this is not your standard three-strikes law. Many – probably most – of the arguments arrayed against the three strikes law in California, and those in other US States, simply do not apply. Indeed, the Sensible Sentencing Trust’s David Garrett claims to have gone to the US, and met with organisations actively campaigning for changes to their draconian legislation. He says a law like his draft bill is what these groups are fighting for, and it is a claim with some merit. It’s still a three-strikes law, but on the spectrum of laws with mandatory life sentences at the third strike this bill is squarely at the liberal end.

The proposed law does not count as a strike every “felony”, but only a very small subset of mostly serious ones. Petty theft will never see you in prison for life, as it has for some Californians. Indeed serious thefts, and burglaries won’t bring you within the regime.

The proposed three strikes law has undergone a number of iterations. It still appears in an earlier form on the Sensible Sentencing Trust's website. On the form of bill on that site, the offences which can count as strikes are:

• Sexual Violation (section 128 of the Crimes Act 1961)
  
• Murder (ss 167 & 168)
  
Manslaughter (s 171)

• Wounding with intent (s 188)
  
Injuring with intent (s 189)

• Injuring by an unlawful act (s 190)
  
Aggravated wounding or injury (s 191)

• Aggravated assault (s 192)
  
Assault with intent to injure (s 193)

• Assault on a child, or by a male on a female (s 194)
  
Cruelty to a child (s 195)

• Disabling (s 197)
  
Discharging a firearm or doing a dangerous act (s 198)

• Using any firearm against a law enforcement officer etc. (s 198A)
  
Commission of a crime while using a firearm (s 198B)

• Acid throwing (s 199)
  
Poisoning with intent (s 200)

• Infecting with disease (s 201)
  
Providing explosives to commit a crime (s 272)

You can see that the list was small. Attempted murder wasn’t a strike, but smacking was (section 194 is the provision under which parents face prosecution following the amendment of section 59).

To those who doubt that commenting on a 'blog can change anything, I offer this thread on John Ansell's 'blog as proof . Someone finally looked beyond bland assertions and promised to fix it up – if you’re designing a three-strike regime, and intending it to apply only to serious violent offences, whatever your thoughts on the criminalisation of smacking, it doesn't belong among them.

Late last year I obtained a copy of the bill in a more recent form by emailing the Act Parliamentary office. Hopefully, I’ve succeeded in attaching it to this post (it may be pretending to be audio). Section 194 was still in – I imagine it no longer is – but there had been some changes. Section 198 was gone, and there were – I might politely call them drafting instructions – to add attempted murder and manufacture of or possession of mephametamine (sic) for supply (why not all class A drugs?).

But it is still instructive to look at what was missing. Indecent assault was not there. The various crimes relating to sexual abuse of children were missing; even attempted sexual violation (i.e. attempted rape), and assault with intent to commit sexual violation weren’t there ('though assault with intent to injure – far less serious – was). Robbery and even aggravated robbery – despite being offences of serious violence – were also missing.

I imagine that some of this has changed. I do not know what, although I understand the bill was introduced under urgency this afternoon: it's not yet available in the usual places.

Apparently, on the bill's introduction, it received

a report from the Attorney-General as inconsistent with the New Zealand Bill of Rights Act. Sentencing someone to prison for life, to serve at least 25 years, for offending that might carry a maximum sentence of at most three years (e.g. assault with intent to injure) is pretty likely to run into problems. And for some of the offences which count as strikes in the drafts I have seen – I think particularly of injuring by unlawful act – it would be ludicrously draconian. Injuring by unlawful act can result from very serious actions, but it is also a charge which can result from non-lethal hunting accidents, or the mis-labelling of the peanut content in foodstuffs.

But I shouldn't be too harsh on the bill. Even if it passes (in the supply agreement support was promised only as far as select committee) it will be some time before it takes effect. It is entirely prospective. Unlike its American counterparts, no offence committed prior to the law's enactment counts as a strike. I imagine it would be at least a decade before anyone is even eligible for sentencing for a third strike (except perhaps for violence in prison). They will have to commit a specified offence, and be sentenced normally, commit a second specified offence, and be sentenced for it as a second strike, and upon leaving prison commit a third specified offence, before facing its full wrath. We've passed retrospective criminal legislation before (home invasion sentencing rules were introduced for the purpose of getting not yet convicted criminals longer sentences), but this isn't it.

I don't want to understate the problems of a mandatory three-strike system. On the drafts I've read, it could result in great injustice even on the second strike. On the publicly available drafts, a second strike

results in the maximum sentence applicable to the offence (e.g. if the second strike is for injuring with intent to injure then the penalty would be the maximum of five years, if it was wounding with intent to cause grievous bodily harm, the sentence would have to be 14 years). But if the second offence was manslaughter, or possession with intent to supply methamphetamine, it would result in a life sentence. And given that even the Sensible Sentencing Trust thinks manslaughter should sometimes result in leniency, I wonder how they'd view their own bill if a single strike was hanging over a Bruce Emery.

This is obviously the main problem with any mandatory sentencing law – there are just some offences, even though they are covered by the same section of the law, that are just less serious than others. Manufacturing a kilogram of methamphetamine is obviously worse than selling a few points of the stuff, but a second strike for either is a life sentence. Janine Rongonui's 150+ stab manslaughter of Pheap Im is obviously worse than Bruce Emery's killing of Pihema Cameron, and both are worse than a manslaughter charge that might result from dangerous driving. Both meth charges, and both homicides, are serious, but they aren't the same, and any two injuring with intents or two wounding can differ greatly too. It is only just that the law treats them differently.

But I'm also not going to pretend that this proposed law is anywhere near as bad as any of the three-strikes laws in the US. And if someone is opposing it by pointing out life sentences that resulted from stealing chocolate chip cookies or golf clubs, you can pretty much ignore what they have to say. The draft law I've seen only applies to specified offences

(and some of the really problematic ones can probably be removed), not theft or burglary; it doesn't bring decade-old convictions back from the dead; it doesn't allow the first and second strikes to occur in the same offending; and it doesn't allow multiple third strikes to make the penalty life with a minimum non-parole period of 50 years. These are the problems Californian opponents of their state's three-strikes law will point out, and the Sensible Sentencing Trust has assiduously avoided all of them.

*Updates*
I've been adding further information on the bill as introduced when able in the comments thread. There's a bit to go, but it seemed sensible to provide links here to my more informative posts:

the link to the bill and the A-G's section 7 report

the list of offences now covered, and those removed from earlier drafts

further changes from earlier drafts noted

a correction to misleading information I gave in answer to a query

*life without parole* for murder

Most followers of American legal dramas (or American political news) will have heard of grand juries – although they may have little idea what they do. This ancient and once widespread legal institution (contrasted with the petit jury we retain to conduct criminal trials) is now really only retained in the United States.

We abandoned the grand jury in 1961, during the last complete overhaul of our crimes legislation (now the Crimes Act 1961, previously the Crimes Act 1908). They continue to exist in the United States today because they were important in 1789 – when the Fifth Amendment was drafted; thus the US federal jurisdiction is stuck with them for the foreseeable future.

When changes to our rule against double jeopardy (also protected in the US by the Fifth Amendment) were moving through Parliament last year, I opined that:

The laying of charges against someone, and bringing them to trial – with all that entails – is one of the greatest impositions of state power there is, and there are very good reasons for not letting them do it repeatedly.

That right has a similar genesis to the grand jury system – both are designed (like many aspects of criminal procedure) to protect individuals from the overzealous exercise of state power. By requiring the state to get permission from a grand jury of ordinary citizens (a majority of at least 12 historically needed – leading to modern grand juries of 23) before bringing the criminal justice machine to bear on an individual is a powerful tool against state corruption. Not only can a grand jury prevent state abuse by refusing permission to try someone, its existence can act as a deterrent to giving it a go in the first place.

Many concerns arise with grand juries, particularly as they’ve evolved in the United States. Rather than protecting individuals from state abuse, their investigative powers can be used as an instrument of state power – by allowing, for example, witnesses to be compelled to give evidence under oath, without a lawyer present, where they could not be before by police. They are also secret, and the proposed defendant isn’t represented, and cannot make submissions (and doesn’t even need to be told it is happening).

As a protection against state power, a grand jury is undoubtedly better than nothing, but the alternative pre-trial check – the preliminary hearing – seems the superior beast. For serious cases in New Zealand these are the depositions we heard so much about when the Criminal Procedure Bill was going through. They are conducted in open court, they allow the defence to see and challenge the evidence before trial (at least they used to), and both prosecution and defence get to argue over whether there is sufficient evidence for the matter to proceed to a trial; moreover, their conduct can greatly simplify the trial proper.

I’m not of the opinion that we should go abandon depositions – indeed I was opposed to the changes that weakened them last year – but I wonder whether there may also be a small place for grand juries in New Zealand. Grand juries have historically had a broader role than merely acting as a check on prosecutorial power (... by either accepting or rejecting a proposed indictment); their powers to compel witnesses allow them to be used as an investigative tool.

Those familiar with the Plame Affair will recall that special prosecutor Patrick Fitzgerald used a grand jury to get to the bottom of that mess, and with so politically charged a set of circumstances, there is additional comfort in knowing that no charges were laid over the leaking not because a Government-appointed prosecutor decided not to bring them, but because a bunch of ordinary citizens didn't think a law was broken.

A similar benefit can be seen to arise from the English coronial system, which (unlike ours) allows for inquests to be conducted by juries. The rejection of Mohammed Al-Fayed's conspiracy theories by a randomly-selected jury at the inquest into the death of Diana, Princess of Wales, makes the claims just that much harder to sustain.

It is in circumstances such as these, where the need for public confidence in any decision is heightened, that I can see a role for grand juries in New Zealand. I think specifically about the recent death of Halatau Naitoko.

In the ordinary course of events following a shooting death, a ranking police officer will look at all the photos and video from the scene, read all the statements, watch or listen to all the interviews, take legal advice (internal and crown solicitor), and then decide the appropriate charge, taking account of the Solicitor-General's Prosecution Guidelines.

I can see substantial advantage to removing that final call from the police in cases like this. Place all that evidence before a grand jury, and allow them to accept, reject, or amend the prosecution's proposed course of action. It is how we used to do it; it is how much of the United States still does.

“Just charge him, and leave it up to the jury” is not an option in a civilised society. Everyone, from lowliest career criminal, terrorist suspect, alleged first-time tagger, and even police officer has rights. Some are contentious. I can think of arguments about how other rights granted in criminal procedure protect criminals and create injustice. I usually disagree with those arguments, but at least I can think of them – there is a debate to be had. The right not to have your prior criminal history known to your jury has come in for some strong criticism of late – some saying it has led to unjust acquittals of serious criminals. I generally hold that the risk of injustice it creates outweighs the problem of erroneous acquittals; but again, there is room for debate.

But I can think of no situation in which a malicious prosecution – a prosecution in which a prosecutor, placing the worst possible interpretation that could reasonably be placed on all the evidence, doesn't think that a jury, accepting everything the prosecution could throw at it and completely ignoring the defence view on all of it, could properly convict – should be commenced. I don't care if the decision to not prosecute is unpopular. The idea that prosecutors should ignore their obligations, break the law, and commence malicious prosecutions to assuage public opinion is abhorrent. I don't want the police force breaking the law, but I sure as hell don't want my prosecutors breaking the law.

Not least because the right not to face a malicious prosecution isn't actually a right a criminal has – it's only a right an innocent person (well, a not guilty one) has. There can be no justification for charging someone that you know could not properly be convicted. If there is sufficient evidence for a charge to be laid, then it should. But if no charge can reasonably and properly be laid, because (after an exhaustive investigation) there is just not enough evidence of a crime, then no charges should follow. It isn't complicated. Public dissatisfaction can bite me.

But I can see the position is invidious. It is why in such charged cases, it may be better for the police or prosecutors to avoid making the call themselves. A grand jury seems ideally placed to remove police and prosecutors from making decisions they would inevitably be attacked over, and which sectors of the public will inevitably have little confidence. Having a grand jury make the final decision on potential prosecutions against police officers, or members of Parliament, or in other highly charged cases is an alternative worth considering.

Feelings that police are protecting their own, or are bowing to political pressure, are best avoided, but they should not be avoided by the “prosecute first, ask questions later” solution some seem to be proposing. Having the final call on criminal proceedings made within the police can lead to intense feelings of distrust in the result. I think particularly of the private prosecution of Keith Abbott – there were internal reviews, and a review by the then Police Complaints Authority (which may still be ongoing?), that have yet to reach any conclusion other than that Senior Constable Abbott behaved appropriately, but these were sufficient to quell the intense anger over the incident, or the emotion over what legal action should result. We cannot know what might have happened, but I wonder whether the private prosecution would have taken place if the initial decision against taking the matter to trial had been made by a grand jury.

The private prosecution faces periodic calls for its abolition or further restriction. They surfaced when Trevor Mallard faced private assault charges (he was convicted of the lesser charge of fighting in a public place), and I believe Greg O’Connor has suggested in the past that police officers should have greater protections from them. The current power of the Solicitor-General to stay prosecutions is perhaps not enough of a safeguard against abuse; I wonder too, if requiring those seeking to commence private prosecutions to attain grand jury agreement (which was the role of grand juries a few hundred years ago) might be the additional safeguard people seek, while still retaining its small but important place in our legal system.

It is too late to help with our latest tragedy, and hopefully there will not be another to trial it with, but the next time the police are investigating one of their own, or are considering some historical allegations against a member of Parliament, allowing them, and us, the protection of public blessing of prosecutorial in/action is something worth considering.