Posts by Keir Leslie
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Mind you, Coll isn’t the only one to have an odd zone. Onslow, for instance, has a zone that runs from parts of Upland Road to Churton Park, but doesn’t take in any of (very close by) Newlands. Of course, Newlands is the other side of the motorway.
(I actually wonder if there are geographical reasons to do with urban development that lead to a lot of these things.)
Also, just 'cause a school, like CBHS, had the foresight to place itself in the geographic centre of wealthy part of town doesn't make it any better.
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, just that anyone they do arrest for fighting in public be locked up for the night instead of just being warned
This is the proposal on the table. It is trivial to come up with cases this would result in injustice, of course, and that is precisely why it is an arbitrary arrest.
Suppose Alice and Bob are a married couple. Alice drunkenly slaps Bob, and a policeman, seeing this, comes by and arrests Alice for fighting in public (& possibly for assault in fact). Bob explains that she’s his wife, her mother just died last week, she’s never done anything like this before, she is very emotional, and he would just like to take her home and put her to bed. She apologises profusely, and they both give their details to the policeman.
The policeman then says: sorry mate, according to the Locking Drunks Up Act 2012, she’s coming to the station with me until morning, no matter what.
Etc. Etc.
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You know perfectly well that I’m not using the word “arbitrary” as it’s been defined by the judicial process.
Oh! So you are using one of the most ringing phrases in several of the most famous protections of our rights and liberties, one of the most loaded and powerful terms in rights jurisprudence, and you want to use it without reference to that, in fact however the hell you like in order to lock more people up? Er. Um. Ah. You know, I have a bit of a problem with that.
Look, just admit that you don't really have a very good grip on civil liberties, and let it go. Clearly arbitrary arrest doesn't mean what you want it to mean, instead it means the thing you want imposed.
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I never said if it was or was not arbitrary arrest. It would be hugely presumptuous to pronounce on the matter on the basis of the facts I have, which are pretty limited. If it is an arbitrary arrest, there are remedies and in fact student protesters have tended to do pretty well out of the BORA — Beggs is the most obvious case here. I have always maintained there are difficulties enforcing those rights, and that is one reason that any attempt to whittle down the prohibition on arbitrary arrest is so repugnant.
On the other hand an automatic night in the cells would certainly be an arbitrary arrest. AG v Hewitt ([2000] 2 NZLR 110 by the way, sorry) (which develops lines from Practical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 and Whithair v AG [1996] 2 NZLR 45) is pretty clear when Justices Randerson and Neazor say:
[55] For present purposes, we are satisfied that a failure to consider the discretion to arrest as a result of blind adherence to policy or a fixed determination to arrest come what may, is not only unlawful but must also be regarded as arbitrary for the purposes of s 22 of the NZBORA.
Meanwhile van Alphen v the Netherlands (in the UNHRC) suggests that
5.8 The drafting history of article ’9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.
Anyway, this is a total sideshow — clearly a fixed rule of jailing etc would violate the prohibition on arbitrary arrest. That is a pretty settled rule of law. See here for quite a good guide to the matter.
Doesn’t it worry you that your proposals are generally repugnant to the liberties of the subject? Isn’t that one of the those things that gives you pause?
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We’ve just established that the police will arrest someone if they wish to, NZBORA or no
No actually we haven't established that the NZ police regularly engage in arbitrary arrests. If they do, there are well known remedies available, including BORA remedies and the criminal law, and legitimising that behaviour by changing the law is not the right way to deal with the problem.
I would imagine that a blanket policy of locking up everyone caught fighting would either have to develop so many exceptions as to not be a blanket policy, or would in fact be the introduction of arbitrary arrest into New Zealand law --- see AG v Hewitt [2002] 2 NZLR 110.
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how does locking up street protestors fit with that?
Well either they were arrested for a reason, or they were subject to unlawful arrest, probably involving assault and false imprisonment. In principle, the courts should offer redress. In practice yes there are difficulties practically enforcing laws. This is one reason that giving the police more powers to lock people up is a fucking atrocious idea.
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Diversion only operates with the consent of the offender, and works as softening of the police's power to otherwise go to court and get a conviction. So it is more of a discretion in the exercise of prosecutorial power. It isn't a stand alone power to punish in advance of a conviction.
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Oh picky bloody picky. I hoped that went without saying, but obviously you needed to see it spelled out in writing.
Er, you said the cops have powers of arbitrary arrest, which is exactly false. If it is picky to point out the fundamental bulwarks of individual liberty from an oppressive state, then I am quite happy to be picky. They do have discretion in the exercise of those powers, which is another fundamental part of the system.
(In traffic matters the police are dealing with very very minor matters, they are subject to challenge and review in court, and they do not involve imprisonment. They are still slightly awkward.)
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No, they don't. A constable must have reasonable and probable grounds to think you have committed an specific offence.
They have discretion over who they arrest, but they can not arrest people in the absence of reasonable and probable grounds to think a specific offence has been committed.
it’s got to be worth discussing ways to make it easier to deal with violent drunks that stop short of having to take them all the way through the court system
Er that is rather the thing we don't want to do. The police should not be allowed to dispense punishment; that is not their role.
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What you guys have missed is that the police can already arbitrarily lock someone up for the night.
Not legally they can’t (s22 BORA for those playing along at home.)
In general, arguments that start `let’s lock more people up’ are basically horrible horrible ideas that will lead to horrible outcomes. In some very specific cases, they aren’t. This is not, as far as I can tell, one of them.