As the civil rights we enjoy get whittled away, the pattern is becoming very familiar. Initially, fresh powers of search, detention, use of secret evidence etc are sought by the authorities for what is claimed to be a very narrow and specialised reason – eg, to combat terrorism or certain types of crime that allegedly cannot be met by the usual methods of policing. All too soon, those powers then get extended to a wider and wider sector of society.

Last week for instance, Justice Minister Simon Power announced a new array of crime-fighting measures – in a package that included the erosion of the accused’s right to remain silent, and thus not able to be coerced into self incrimination. As usual, it was claimed that such measures would be limited to particular types of investigations, and require court approval etc. It was also claimed that such measures would be similar to the powers to compel testimony that are already held by the Serious Fraud Office.

However, only two or three years ago, the existence of those particular SFO powers was being treated as an outrage, and a reason for abolishing the SFO altogether. In a brilliant Sunday Star-Times article on the subject in 2007, Jenni McManus and the law experts she consulted came close to predicting the current turn of events:

Much of the criticism surrounding the SFO centres on its extraordinary (some say draconian) powers, enshrined in the Serious Fraud Office Act 1990….Most controversial is Section 5 - the power to require documents to be handed over if the director has reason to believe they may be relevant to any suspected fraud investigation - and Section 9, effectively removing the right to silence (or, more correctly, the privilege against compelled self-incrimination) for anyone the director believes can usefully answer questions relevant to an investigation. The answers, however, will not be used in evidence in court if the suspect's evidence does not contradict his original story…..

"The powers are appropriate for fraud [ said then SFO chief David Bradshaw] but may not be appropriate for any other offences. Our witnesses aren't interested in the right to silence. They just want to be able to feel comfortable - banks and accountants and people like that - that they can give us this information and nobody can point the finger at them for talking to the SFO. We have to have compulsion for people to talk to us because otherwise they wouldn't."

Maybe not, says Auckland University associate law professor Scott Optican, but there are other, equally important competing rights at stake. Many of the SFO's powers breach the Bill of Rights Act and in his native United States would be struck down by the courts as unconstitutional.

The updated Evidence Act, due to come into force later this year, will cure Bill of Rights Act breaches when it comes to the compelled production of documents, as pre-existing documents will no longer be covered by the privilege against self-incrimination.

But forcing people to front up and answer questions is a different matter, Optican says. It includes not simply compelling the suspect to utter self-incriminating words, which breaches their right to refuse to co-operate in an investigation, but also includes information which could be used to form a link in the investigatory chain. Moreover, the SFO is the only regulator with this power. Not even the police can compel people to answer questions or to co-operate.

"Effectively the SFO is asking you to participate in its own investigation," Optican says. "I can think of lots of police investigations where there is key information in people's minds that the police might want to know. There are very good policy reasons for not doing this. It tramples on rights that are equally worth protecting."

Optican says it seems the SFO is saying compulsion is an effective tool and, because serious fraud is difficult to investigate, the office should have this power. "But the justifications are pretty thin on the ground. The police would like this power too. What is so unique or special about white collar crime? Is the SFO saying it's harder to investigate and more serious than murder?"

Optican was eerily on target. The Police did indeed want those same powers, and Simon Power has now handed them over. It should also be noted that this erosion of the right to remain silent is occurring in tandem with the erosion of the accused’s access to the evidence for the charges against him or her. Again, measures meant to combat the particular threat posed by terrorism, are being extended. Under the still pending Immigration Bill, secret evidence can be used far more widely, and so will the special advocate ‘safeguard’ – a figleaf for the erosion of due process rights that has been roundly criticized in the UK and Canada.

The problem with the Immigration Bill is that events have moved on a great deal since it first became a twinkle in the eye of immigration officials three or four years ago. The Immigration Service itself has become mired in scandal and has received a damning evaluation by the Auditor-General. To the point where you might have thought the Immigration Service would now be the last government department that any sane politician would think of granting wider powers of search, detention and interrogation to its staff - much less expect the courts to rely upon any secret evidence that it produces. The current Prime Minister has after all, called the Service ‘a shambles.’ So why extend its powers?

Overseas, the pendulum has swung back against the use of secret evidence and a reliance on the special advocate system. Last month, the House of Lords unanimously condemned the use of secret evidence, when issuing a major decision on the legality of control orders.

As Lord Phillips, the senior Law Lord said at para 63 of the judgement : ‘A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him..’ Lord Hope of Craighead added : “The principle that the accused has a right to know what is being alleged against him has a long pedigree .... The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him (para 78). Such guarantees do not exist under the Immigration Bill in New Zealand, as currently framed.

Since in New Zealand, anti-terrorism law has been used to justify anti-democratic measures, Lord Hope’s further comments are highly relevant :

The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him (para 79).

The slow creep of complacency, indeed. The Lords ruling happened to coincide with the release of a major report on the history and use of secret evidence, compiled by Justice, the leading United Kingdom human rights organization. Over the course of its 238 pages, the Justice report traces the growth of secret evidence in British courts from the Star Chamber in the 17th century, to its use in British courts over the past decade. Since 1997, secret evidence has been used in a wide and slowly expanding range of court proceedings - from deportation hearings before immigration tribunals, to pre-charge detention hearings in terrorism cases, employment tribunals, asset-freezing cases, parole board hearings, and the control order cases in the High Court and Court of Appeal.

Defendants in some criminal cases, the Justice report continues, are now being convicted on the basis of evidence that has never been made public. Criminal courts have issued judgments with redactions to conceal some of the evidence relied upon. Evidence from anonymous witnesses has also been used in criminal trials and during the so-called ASBO, or Anti-Social Behaviour Order hearings.

Plainly, the erosion of civil liberties and legal rights is a very slippery slope. While of concern in isolation, the impact of each measure has to be considered in conjunction with related attacks on the right of the accused, that only compound the effect. So far this year for instance we have seen the current government oversee the erosion of the power to remain silent. It has also enacted changes to the need for a unanimous decision by a jury of twelve of one’s peers, and also the abolition of the defence’s automatic right of access to witnesses in oral depositions during pre-trial proceedings.

Video-conferencing of evidence is also to be trialled, in order to try and minimize the cost of court sittings, Inevitably, this will erode the ancient right of a defendant to look his or her accusers in the eye.

We are seeing an across the board change in the rights of those brought before our courts – and every one of the changes is occurring on only one side of the ledger, to whittle away the rights of the accused. The moves outlined happen to co-incide with – and in some cases will compound - the effect of the last Labour government’s Immigration Bill. As I’ve said, this Bill will enable the wider use of secret evidence and special advocates and will extend the powers of search and detention held by a new and highly dubious group of Immigration Service officials. For all their avowed concern about the rights of the individual, neither the Act Party nor National, have seen fit to oppose the Bill.

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