Criminal Justice Law Reform Bill
Introduction Proposed New Stopping Power
Ministerial Veto of Parole Board Direction to Release Legislative Outcome and Comments
133 This submission considered two matters:
- the proposed new police powers to stop motor vehicles; and
- an aspect of the power of the Minister of Justice to veto certain directions of the Parole Board.
134 Clause 74 of the Criminal Justice Law Reform Bill inserted a new sections 317A and 317s into the Crimes Act 1961. These new sections provided a power for the police to stop vehicles, and set up road blocks, respectively.
Implementing the policy decision
135 The catalyst for this proposed power seems to have been the report in 1991 of the Police Complaints Authority - Second Annual Report of the Police Complaints Authority (for the year ended 30 June 1991). A number of complaints revealed that police had stopped people under the Transport Act 1962, but for purposes unrelated to that Act. The police were for instance stopping vehicles for the purpose of determining whether they contained any evidence of crime ("turnovers"). The Police Complaints Authority strongly recommended to the Commissioner of Police that he seek a statutory amendment to enable the police to resume the practice of "turnover", at least in the case of suspected stolen property. In the course of that process it also emerged that the police had no power to set up road blocks - leading to the proposal in new section 317B.
136 While there are powers to stop or search vehicles in section 66 of the Transport Act 1962, sections 202B and 227A of the Crimes Act 1961, section 18 of the Misuse of Drugs Act 1975 and section 60 of the Arms Act 1983, these powers can be exercised only for limited purposes, for example, to stop and search for offensive weapons which the police have reasonable grounds to believe are in the vehicle.
137 There is no power to stop a vehicle so that the police officer may talk to the occupants in much the same way as a police officer may approach a person in the street in order to ask that person some questions. Of course, the person so approached is under no obligation to answer those questions or to wait and be questioned, and the police officer has no general power to then search that person for evidence of a crime.
138 The proposed section 317A was a power to stop vehicles and, therefore, it met the concern of the police that they should have such a power. However, the proposal did not confer any power that could be exercised following the stopping. The LAC asked the select committee to consider the following:
- Is the driver obliged to remain stopped for a period? Compare section 66(2)(a) of the Transport Act 1962;
- Does the police officer have any power to detain the driver or any other person or the vehicle for a period? Compare section 227A of the Crimes Act 1961;
- Does the police officer have the power to require persons in the vehicle to identify themselves? Compare section 66(2)(b) of the Transport Act 1962 and proposed section 317B(4)(c);
- Does the police officer have any power of search for a person or evidence? Compare sections 202B(b) and 227A of the Crimes Act 1961 and proposed section 317B(4)(d); and
- The general and related question of the purpose of the stopping.
139 Proposed section 317A appeared to be incomplete and not to address the problem identified by the Police Complaints Authority. Any additional powers would have to be tested against established principles. The Search and Search Warrants Committee recommended in its Final Report on Search and Search Warrants (June 1988) that where a belief exists that an offence has been committed the search should be by consent or with a warrant unless there are compelling reasons to the contrary. There is a question of how that recommendation applies to motor vehicles.
140 Further, the New Zealand Bill of Rights Act 1990 protects the right to freedom of movement (section 18), the right to be secure against unreasonable search or seizure (section 21) and the right not to be arbitrarily detained (section 22). If a broad power to stop and search vehicles for the evidence of criminal offences was to be a justified limitation in terms of section 5 of that Act, the purposes of the power, and the grounds on which it could be exercised, would have to be stated with precision. The powers that are at present in the statute book, and the questions asked in paragraph 138, suggest how that might be done.
Identification of police officers
141 Proposed sections 317A and 317B did not require that the police officer be clearly identified as a police officer. By contrast the principal power to stop, in section 66 of the Transport Act 1962, does require identification at the stage of the demand to stop, either by the wearing of a distinctive uniform or hat or by the flashing coloured lights and the siren of the vehicle. Such a requirement of distinctiveness has been in the statute book since at least 1949 and was enhanced in 1988 by the provisions relating to flashing lights and sirens (there had been some confusion about the obligations of drivers who were signalled to stop by that means).
142 There seemed to be no obvious reason why those requirements which have been worked out the interests of safety and effective policing for stopping vehicles for the purposes of the Transport Act 1962 should not apply to this provision as well. What are drivers, possibly concerned for their safety on a lonely stretch of road, to do when directed to stop by a person not in uniform or pursued by a car which is not displaying distinctive lights and sirens?
143 The Committee recommended that identification provisions along the lines of those in the Transport Act 1962 be included in proposed section 317A. This recommendation equally applies to the existing statutory provision noted in paragraph 138.
Ministerial Veto of Parole Board Direction to Release
144 The second of the two matters which the LAC included in its submission concerned an aspect f the power of the Minister of Justice to veto certain directions of the Parole Board.
145 Clause 32 amended section 94 of the Criminal Justice Act 1985 to give the Minister of Justice the power to veto a direction of the Parole Board for the release of an offender who was subject to life imprisonment or preventive detention. The only express obligation on the Minister was to notify the offender of that decision (new section 97(6), inserted by clause 35(2)). While the matter could be the subject of further consideration by the Parole Board (existing section 94(2)) it could find itself in an awkward position given its earlier decision.
146 The Criminal Justice Act 1985 provides of course for the release on parole, and eligibility for consideration for release, of offenders before their full term has expired. Offenders have certain fights to appear before a Parole Board or District Prisons Board and to state their case in person or, by leave, by counsel. Offenders have the right to see and comment on any report which the prison superintendent submits to the Board. If the Board declined the application it must give the offender to reasons for that decision.
147 By contrast, the Minister was not expressly required to:
(a) advise offenders of the intention to consider issuing a veto;
(b) give offenders any opportunity to present their case, including commenting on material available to the Minister; or
(c) give any reasons for the decision to veto release (although these could of course be sought under the Official Information Act 1982).
148 Given the importance for individual liberty of any veto, the fact that offenders have decisions for their release, the careful prescribed procedure for the making of those original decisions, the dangers for the quality of the veto decision of not having a good process, the possible injustice to the offender, and the sense of unfairness that would be generated by such a procedure - matters underlying the principle stated in section 27(1) of the New Zealand Bill of Rights Act 1990 - the Committee recommended that the Bill should expressly include procedural safeguards.
Legislative Outcome and Comments
149 The provisions in the Bill relating to new police powers to stop vehicles were enacted in the Crimes Amendment Act (No. 2) 1993. Many of the amendments made to the Bill are consistent with the points made in the LAC submission. In particular the LAC submission had noted that although the new provisions gave the police the power to stop vehicles, no powers were conferred that could be exercised following the stopping.
150 Section 317A, as enacted, now provides for some powers following the stopping, such as the power to require that the vehicle remain stopped for as long as is reasonably necessary, to require persons in the vehicle to identify themselves, and to search the vehicle for the purpose of locating a person suspected of being unlawfully at large or having committed an offence. The general purpose of the provision enabling police to stop vehicles is also identified in the Crimes Amendment Act (No. 2) 1993, that of arresting such a suspected person.
151 The Act does not, however, enable the police to stop vehicles for the purpose of determining whether they contain any evidence of crime, which the LAC had understood to be one of the original reasons for proposing the amendment.
152 The LAC had expressed a concern that the Bill did not require police officers involved in road blocks to be identifiable as police officers. The Act has adopted the suggestions of the LAC submission and has provided for identification requirements similar to those in the Transport Act 1962.
Ministerial veto of Parole Board direction to release
153 The LAC had recommended procedural safeguards in relation to the provisions in the Bill allowing a ministerial veto of the Parole Board direction to release. The provisions as enacted in the Criminal Justice Amendment Act (No. 2) 1993 differ significantly from those in the Bill; not along the lines suggested by LAC, but consistent with a greater concern for fairness as advocated by LAC. In place of the power of ministerial veto, new section 98 requires the Parole Board to comply with the policy of the Government in relation to parole for offenders subject to indeterminate sentences, and to comply with any directions relating to that policy given to it in writing signed by the Minister of Justice. Section 98(2) goes on to provide that the Minister may not give any direction which requires the Parole Board to do, or not to do, anything in respect of any particular offender or offenders.