Legal Beagle by Graeme Edgeler


On Burglary, or: Dropping the Ball

Some time later this year the Criminal Procedure Act will enter into force. There are major changes to the procedure, many (I suspect most) for the better. It also contains the first amendment to the New Zealand Bill of Rights Act that reduces the rights contained in it, instead of extending them.

It's a pretty big deal. But the discussion on these procedural changes has been done. My posts here and here have some of the details.

But the changing of some of the processes, has meant substantive changes were needed to our criminal laws. In particular, the removal of the distinction between indictable offences (otherwise known as crimes), and summary offences (otherwise known as summary offences) will result in the expansion of the scope of a number of crimes.

The definitions of a number of crimes include the word "crime" within them, and when we abolish "crimes" in the technical sense, something needs to replace it. The important point to note is that things that currently constitute "crimes" are essentially a subset of imprisonable offences. Not all things that count as "crimes" are really serious, but there is a certain threshold that has to be reached. The group of imprisonable offences is considerably larger than the group of crimes.

The best example of the change - and the one most likely to make a big difference, is the offence of burglary.

Historically, burglary was the combination of two offences: breaking and entering, and theft. Breaking into someone's house is a crime. Stealing from someone is a crime. Add the two together and it gets much more serious.

There have been changes over the years to burglary. The requirement of "breaking" went at some point, so that it could still be a burglary if you went through an unlocked door. The definition of what counted as entry also changed. Any part of you, or of anything you were holding could be enough. There also used to be a greater focus on buildings, and I don't think it always covered tents, and 'enclosed yards', which it now does.

One of my tutors on the Legal Professionals course gave an example of the effect of the then quite-recent law change. I probably have the details wrong, but his client had smashed a shop window with some sort of crowbar, only to realise that there was a security grill behind the glass. She never entered the premises, but the tip of crowbar did as it went through the window, and as she was touching the crowbar at the time, that was enough. Upon finding herself charged with burglary, she said something to the effect "that's not a burglary, I've done burglaries!" But it is, now.

These changes were behind the burglary charges initially faced by Lucy Lawless and her fellow Greenpeace protesters over her oil-drilling protest, and also the burglary charge faced by Adrian Leason, Peter Murnane and Sam Land over the Waihopai spy dome deflation. There was some media comment that the burglary charges in those cases were "overcharging", but the charges just reflected changes to the legal elements of burglary, that perhaps haven't been subsumed into its ordinarily-understood definition.

Big changes, yes, but they were announced in advance, and debated in Parliament in the ordinary way. The change to burglary (as well as some other offences) as a result of the Criminal Procedure Act, hasn't really faced the same sort of scrutiny.

At present, after the changes I list above, burglary can essentially be described as an illegal entry, with the intention of committing a crime.

Notice the use of the word crime. We're abolishing crimes, and we're abolishing the indictable jurisdiction that essentially defines which offences count as crimes, and which do not. An illegal entry undertaken for the purpose of committing an offence that does not meet the definition of "crime" is not a burglary.

But the use of the word crime as part of one of the elements of an offence like burglary, means we have to come up with another concept to take the place of the "intention to commit crime" component of the offence. In respect of burglary, the intention requirement will change from “with intent to commit a crime” to “with intent to commit an imprisonable offence”. Because the range of offences covered by “imprisonable offence” is much wider than the range of offences covered by “crime”, this means that the scope of burglary has expanded substantially. And things that previously did not count as a burglary, soon will.

Two examples should suffice: when the law change takes effect, an unauthorised entry into an enclosed yard for the purposes of committing minor vandalism (currently three months’ imprisonment for the entry, and three months’ imprisonment for the wilful damage), will become a burglary, with a maximum of 10 years’ imprisonment.

It might also be easy to imagine someone selling marijuana on a street doing so from behind the fence of enclosed yard, so they can't easily be seen. Putting your hand through the fence to secure possession of your class C drug (maximum penalty three months' imprisonment), will soon, also constitute a burglary.

The behaviour I've described probably won't result in burglary charges all that often, but as the charges in the Waihopai and Greenpeace protests show, assumptions about police charging practice as a result of law changes may not always be met.

The law change itself isn't really the concern (although, let's be honest, it is). My concern is the way in which the change was made, without anyone realising that was what was happening. I suspect few of the members of Parliament who spoke on the bill, and voted for it, understood the consequences of the change they were making, and I don't believe anyone who made a submission on the bill did either (I read them all) .

I wrote a fairly big part of a submission on the Criminal Procedure Bill. And like everyone else, focused on the big-ticket stuff. I picked up a few procedural issues, and got a few things changed no-one else had noticed.

Last week, I presented an argument in the Supreme Court which focused on a provision in the Act's suppression powers (which are the bit of the law already in force) which closely mirrors language I wrote for the submission. I'm quite pleased that non-accredited media can have a right to be heard on suppression orders (especially given the Law Commission recommended they shouldn't) and it was quite surreal to be arguing about what it meant given I'd spotted the issue, and suggested the change adopted.

But I missed this.

And I'm sorry about that. This isn't to say the change is necessarily bad, but there should have been a debate. Even if just on this website. I wasn't alone in missing it, but this is the type of unintended consequence I try to pick up when I'm writing a submission on a bill, and I dropped the ball.

I recognised the change some time ago, too late to make a difference to the changes in the Criminal Procedure Act, but have been meaning to post on it. A submission I presented yesterday to the Justice and Electoral Committee (on behalf of the Law Society) (.pdf)  seems like a good time to do it.

When the Criminal Procedure Act was passed, references to crime and indictment from across the statute book were amended, and changes were made to a whole bunch of offences like burglary. But a few were missed, and along with a few minor changes, Parliament is now considering a "non-controversial" bill to fix things up for later in the year when the new regime takes effect.

The Criminal Procedure Legislation Bill includes changes to six offence provisions which include an intention to commit a crime as one of their elements. It proposed to change three of these offence provisions in line with the changes to burglary: changing the requirement from an intention to commit a crime, to an intention to commit an imprisonable offence. The effect won't be as wide-ranging as the burglary change, but the scope of each offence is nonetheless expanded. The change to the other three is much more concerning, with the intention element changing from an intention to commit a crime, to an intention to commit an offence. That offence doesn't have to be imprisonable.

One of those three offences is the offence contained in section 251(2) of the Crimes Act, which makes it an offence punishable by two years imprisonment to possess "any software or other information that would enable [you] to access a computer system without authorisation" if  you intend "to use that software or other information to commit a crime". I'm pretty sure Microsoft Windows has that capability, so it seems rather ludicrous to make possession of it a serious crime in such circumstances. Increasing the punishment of a minor, fine-only offence to two-years imprisonment because of the involvement of a computer program is legislative overkill.

Yet more concerning is that the bill not only proposes making this sort of change, but that it would also empower the government to make future changes of this nature by regulation. If it happens that there are a few more of these offences with "intention to commit a crime" contained in them, the government wouldn't even need Parliamentary approval to choose between extending them to imprisonable offences, or all offences.

Parliament should be very wary about ever giving the government the power to amend primary legislation, but that power should never include the power to expand the scope of criminal offences. And it certainly shouldn't be doing it in a non-controversial law reform bill.

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