1 October 2011

Covert surveillance: Labour’s bottom line

Labour have announced their position, following Select Committee hearings, on the covert video surveillance Bill.  Given the numbers in Parliament, it’s an influential position – and will represent the position adopted, unless the National Party can win some other votes for a more restrictive position.

But I have mixed feelings.

On the one hand, it’s a vast improvement on the government’s original position.  The temporary legislation will apply for a shorter period.  And it will not apply to current investigations and prosecutions.  Both would be significant improvements.  

On the other hand, I’m disappointed by a couple elements.  It’s too late, apparently, to draft and implement a regime of judicial warrants for surveillance.  And convictions already obtained won’t be able to be challenged on the basis of unlawfulness – that is, some retrospective validations will apply.

It’s a mixture of principle and pragmatism, as Charles Chauvel had candidly admitted on Red Alert.

To recap, this is Labour’s bottom line position following the select committee hearings:
“1. In order to allow the Police to resume covert video surveillance from the date of the Bill’s assent, their powers to do so must be affirmed, but only on the basis of the law as it was understood prior to the Hamed decision, no more broadly than that, and only on the basis of the most serious offending. Labour would have liked the Bill to go further, and provide a warranting procedure, but accepts that the Government left the drafting exercise needed too late to make this happen;
2. The legislation needs to apply for a maximum of 6 months only;.
3. Cases currently under investigation, whether or not yet before the courts, must not be interfered with by Parliament. The Courts must be left free to determine under existing law whether evidence gathered in support of any such prosecutions is admissible. The overwhelming evidence before the committee is that s30 Evidence Act and s21 NZ Bill of Rights Act give the courts this power, and that there is no justification for Parliament to try to intervene. Claims that serious crime will go unpunished have been shown to be misguided. We are satisfied that serious crime will not go unpunished because appropriate safeguards already exist to prevent this;
4. It must be made clear that persons convicted in cases where covert video surveillance was used in the past cannot now seek to overturn their convictions, or seek compensation from the Crown for wrongful conviction or imprisonment, only by reason of the use of covert video surveillance. In other words, the law that applied at the time of conviction must clearly continue to apply, rather than the conviction being measured against a later standard.”
Let’s deal with each.

Prospective authority to engage in covert video surveillance, but no warranting regime
No issue with Parliament providing this power, especially for serious cases.  I’m disappointed, though, that the wheels of government couldn’t draft a warranting regime in time before Parliament rises.  Quite frankly I’m surprised.  But I admit time is pressed.

One alternative option might have been to consider whether the warranting regime could have been dealt with by regulation. Ordinarily this would be objectionable, as important policy-based matters like this should be addressed in primary legislation.  However, here it would be the better of two bad things. That would give some breathing space for drafting purposes. Checks and balances would apply: in-principle direction in legislation; mandatory consultation with opposition parties and courts; temporary application.  We’re talking a couple of weeks I guess.  In the interim,  if considered necessary, the proposed blanket power could apply to allow the cameras to be switched back on.

Temporary for 6 months only

Not applicable to current investigations and prosecutions
Excellent. This would be a significant improvement.  And the sky won't fall as a result.  

Past convictions not able to be challenged
I’m disappointed by this concession.  I understand the concern about not wanting to open up the floodgates, to free criminals already convicted. But this caveat means the legislation would still have some retrospective effect, deeming lawful what has been found to be unlawful.

But it’s also important to assess the counterfactual.  Absent any validation of past convictions, what chances would a convicted person have in successfully appealing based on an argument that their conviction was based on unlawful covert video surveillance?

(A brief caveat first.  I’m straying outside my comfort area. Criminal procedure isn’t my bread and butter. So I welcome quibbles or corroboration.)

Anyways, three big hurdles for a convicted person:

First, in most cases, any appeal will be out of time.  An appeal out of time is an indulgence, not automatic.  Even in cases where a later court ruling effectively changes the law on which the previous conviction was based, “special circumstances” must be advanced in order to be allowed to argue for the benefit of that ruling.

The Court of Appeal in R v Knight (1997) 15 CRNZ 332 said:
“Reflecting the policy underlying s 388, the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.”
Secondly, any failure to have objected to the evidence at the trial makes it much harder to argue on appeal the evidence ought to have been excluded.  The objection must have a decisive effect on conviction.  And the failure to object must have arisen through gross negligence on the part of counsel, rather than as a result of some plausible tactical decision.

The Court of Appeal in R v P [1996] 3 NZLR 132:
“[There are] problems inherent in a challenge to the admissibility of evidence to which no objection was taken at trial. By itself the failure to raise an evidential objection at trial of itself does not preclude taking the point on appeal, see eg R v Horsfall [1981] 1 NZLR 116, 123. … [But this] Court has emphasised that in such situations it will be unsympathetic to subsequent attempts to found an appeal on the contention that the evidence was inadmissible...
As to the principles applicable at the appellate stage, it is necessary for the appellant to show that if objection had been properly taken the Judge would not have admitted the evidence: R v Mason [1988] 2 NZLR 61, 63. If there was a tenable basis for admitting the evidence the appellant will fail. …
If the appellant is able to overcome that first-hurdle, there is another. The evidence in question must be such as to have had a significant prejudicial effect on the outcome of the trial. This is necessary to bring the situation within the concept of miscarriage of justice in terms of s 385(1)(c) of the Crimes Act 1961: R v Horsfall at p 123. Finally, an overarching requirement is that counsel's failure to take the objection at trial was a mistake of the radical kind needed to invoke the principle in R v Pointon [1985] 1 NZLR 109. That requirement necessarily must be a precondition for an appellant not only to take a new objection on appeal to the admission of evidence at the trial but to then also seek to adduce evidence directed to the objection at the appeal hearing.”
Finally, in any appeal, any convicted person will face the hurdle of s 30 of the Evidence Act 2006.  Or its common law equivalent, Shaheed (I’m not sure here about the transitional treatment for the Evidence Act).  The discretion in s 30 will be amplified.  Not only is there a prospect that the unlawfully obtained evidence will still be admitted (for the reasons explained in previous posts), the prospect of its admission weighs against any finding that the evidential point is decisive for the purposes of a late appeal or excusing the fact objection was not taken at trial.

So, a convicted person would face some big hurdles.

As with the current investigations and prosecutions, I would prefer that each case be able to be addressed on its own merits.  The courts already balance the need for fairness and finality.  I don’t think the sky would have fallen if they were left to do their business.  Hence, probably no need to retrospective legislative validation.

Assuming, though, some validation results, perhaps the more significant question is what the “cut-off” date is.  The Labour proposal doesn’t speak to this.  And there are various possible dates:

- enactment of the Bill
- introduction of the Bill
- date of Supreme Court decision
- date of High Court decision.

My preference would be the latter.   Any argument that the Crown acted in good faith advancing the covert video surveillance evidence based their understanding of the law evaporated at the point of Winkelmann J’s ruling in the High Court. (As you know, I don’t necessarily agree with the police account, but let’s assume that’s the case for now).   The Crown were on notice of the problem. There was, undoubtedly, a clear finding of illegality about covert video surveillance, albeit the evidence was allowed in under s 30 of the Evidence Act. There’s a strong case therefore, I think, for arguing that any cases that followed be dealt with on the same basis as current cases.  At that point it could no longer be claimed that the police were acting in good faith in promoting conviction based on covert video evidence.

And I still would like some form of inquiry into the systemic cause of this illegality.  It is extraordinary that the police have been acting unlawfully for so long and so widely.  I want to know why.  And I want to be assured it won’t happen again.

Regardless of my reservations about some elements of Labour’s position, the fact the Bill went through the Select Committee and the detail is being subjected to reflective parliamentary negotiation is significant. That wasn’t an option less than a fortnight ago.  Some points will be won.  Some will be lost.  But, at least, the process has allowed us to engage in that contest.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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