You are here: Home Publications Publications A-Z g Guidelines on the New Zealand Bill of Rights Act 1990 Section 23 Rights of persons arrested or detained

Section 23 Rights of persons arrested or detained

Section 23 Rights of persons arrested or detained
Section 23(1)(a) The right to be informed of the reasons for the arrest
Section 23(1)(b): The right to counsel and instruct a lawyer without delay
Section 23(1)(c) Determining the validity of the arrest or detention
Section 23(2) The right to be charged promptly or released
Section 23(3): The right to be brought before a court
Section 23(4) The right to refrain from making any statement
Section 23(5): The right to be treated with humanity and respect

 

Section 23 Rights of persons arrested or detained

Section 23 of the Bill of Rights Act states that:

  1. Everyone who is arrested or who is detained under any enactment:
  1. Shall be informed at the time of the arrest or detention of the reason for it; and
  2. Shall have the right to counsel and instruct a lawyer without delay and to be informed of that right; and
  3. Shall have the right to have the validity of the arrest and detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
  1. Everyone who is arrested for an offence has the right to be charged promptly or to be released.
  2. Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
  3. Everyone who is
  1. Arrested; or
  2. Detained under any enactment for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
  1. Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

Policy Triggers: do I need to consider section 23?

Is your agency or department working on a policy or developing a practice that will enable a law enforcement officer to exercise a statutory power to detain or arrest? If so, you will need to establish procedures and guidelines to:

  • ensure the enforcement officer gives the arrested or detained person (the "detainee") sufficient information about the reasons for the arrest or detention;
  • ensure the enforcement officer informs the detainee that he or she may consult and instruct a lawyer;
  • ensure that detainees who wish to consult and instruct a lawyer are not questioned in the absence of the lawyer;
  • enhance the ability of detainees to consult with and instruct their lawyers;
  • enable the detainee to consult with a lawyer in private;
  • enable the detainee to lodge a writ of habeas corpus with a court to test the validity of the arrest or detention;
  • establish minimum standards and conditions to which the detainee may be subjected.

What every policy analyst needs to know about section 23

  • The rights in section 23 apply only where a person has been arrested or, in relation to sections 23(1), 23(4) and 23(5), detained under an enactment.
  • As a person may have been arrested or detained as a consequence of an alleged offence, there may be some overlap and link between the rights in sections 23, 24, and 25 - even though they apply to distinct stages of the prosecutorial process.
  • Where a person has been arrested or detained under an enactment because of an alleged offence, the rights in section 23 apply from the time a person is arrested or detained until such time as the prosecuting authority formally advises an arrested person that he or she is to be prosecuted and gives that person particulars of the charges he or she will face.

Further discussion on the meaning of section 23(1) - initial considerations

Who is "Everyone who is arrested or detained under any enactment"?

The words "under any enactment" distinguish the character or quality of arrest or detention in section 23 from those in section 22. [482] The effect of this qualification is to limit the scope of the meaning of "detention" for the purposes of section 23. [483] The rights in section 23 apply in the case of a detention only if that detention is authorised by legislation. [484] However, if a person is "detained" but the detention falls outside of the scope of the enactment, the rights in section 23 will still apply if the officer acted in reliance on the statutory power. [485]

Statutory provisions, such as section 68 of the Land Transport Act 1998, may expressly provide for a power of detention. In other cases the power may be implicit given the nature of the statutory objective, for example, personal searches under section 18(2) of the Misuse of Drugs Act 1975.

Key case

R v Goodwin [1993] 2 NZLR 153.

History of the section

The White Paper

The White Paper separated the proposed rights of persons arrested and detained into those concerned with the liberty of the person (clause 15) and those pertaining to arrest (clause 16). Apart from the right not to be arbitrarily arrested or detained, section 23 is a consolidation of these clauses.

The Select Committee Reports on the Bill of Rights Bill

The Select Committee considered the two clauses on the rights of arrested and detained persons alongside those pertaining to the criminal process (namely clauses 18 and 19 of the Bill of Rights Bill). The Committee received several comments about the general nature of these proposals. For instance, it was suggested that they would shift the focus in criminal cases from questions about the guilt of the defendant to questions about the actions of the police. It was also submitted that the effect of the proposals would be to create uncertainty and complexity in the law with a resultant lack of guidance for police officers and an increase in the volume of litigation. Finally, it was proposed that the order of these clauses should be changed to better reflect the sequence of the criminal process, i.e. arrest, charging, and trial.

The Select Committee noted that it was inevitable that the adoption of the rights contained in these proposals as part of the supreme law would enable arguments to be made on the basis of the infringement of these rights: particularly as they had been the subject of considerable litigation in Canada. However, the fundamental nature of these rights was such as to outweigh any perceived disadvantages in their entrenchment. In the Committee's opinion, awareness of the rights contained in the Bill would increase over time and this would assist in overcoming some of the practical difficulties associated with its adoption. Finally, the Committee supported the suggestion that the Bill should be altered to reflect the sequence of events in the criminal process.

With respect to the specific proposals, the Select Committee confined its comments to the right not to be arbitrarily arrested and detained (which is set out in section 22 of the Bill of Rights Act) and the right of arrested persons to remain silent. The Committee considered that the latter right was one of the most fundamental rights requiring protection. Although the Committee was not convinced that the protection of silence was relevant in all situations where persons were detained, it supported the view that it should also apply where a person was detained "in relation to a suspected offence".

Origins in international treaties and overseas legislation

Articles 9(2) through (4) and 10(1) of the ICCPR provide:

9(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
9(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
9(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
10(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Articles 5(2) to 5(4) of the European Convention of Human Rights provide:

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be promptly brought before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Section 10 of the Canadian Charter sets out that:

Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Section 23(1)(a) The right to be informed of the reasons for the arrest

Section 23(1)(a) of the Bill of Rights Act is as follows:

Reasons for the arrest
Everyone who is arrested or who is detained under any enactment shall be informed at the time of the arrest or detention of the reason for it.

Policy triggers: do I need to consider section 23(1)(a)?

If you are working on a policy or developing a practice that enables enforcement officers to carry out powers of arrest or detention, you need to ensure that the policy or practices are consistent with section 23(1)(a).

What every policy analyst needs to know about section 23(1)(a)

To comply with section 23(1)(a) of the Bill of Rights Act, the enforcement officer should promptly inform an arrested or detained person (the "detainee") of the reasons for his or her arrest or detention in words sufficient to give the detainee notice of the true reasons for the arrest. With regard to the type of information that needs to be provided, the enforcement officer should be mindful that he or she does not:

  • deliberately minimise the legal consequences of the jeopardy facing the detainee;
  • mislead the detainee over the reasons for the arrest or detention for the purpose of eliciting information from him or her; or
  • fail to advise the detainee that the reasons for the detention have changed.

Measures to achieve compliance

When working on a policy or developing a practice that involves arrest or detention, you should establish instructions or rules governing the exercise of these powers. You may also need to consider what additional training and support is required so that enforcement officers can carry out their tasks consistently with the standards set down by the courts.

The information set out above is based on the decisions of courts in New Zealand and overseas. If you require further information, refer to the following discussion on section 23(1)(a).

Related rights and freedoms

When developing policies or practices relating to the detention of persons, you should consider the remaining rights in section 23, particularly section 23(1)(b) and 23(4). You may also need to consider:

  • the right not to be arbitrarily arrested or detained (section 22);
  • the right of everyone who is charged with an offence to be informed promptly and in detail of the nature and cause of the charge (section 24(a));
  • the right to adequate time and facilities to prepare a defence (section 24(d));
  • the right to a fair trial (section 25(a));
  • the right to be tried without undue delay (section 25(b));
  • the right to be present at the trial and to present a defence (section 25(e)).

Further discussion on the meaning of section 23(1)(a)

Why should a person be informed at the time of his/her arrest or detention of the reason for the arrest or detention?

The first right that is guaranteed to suspects under section 23(1) of the Bill of Rights Act is the right to be informed of the reason for arrest or detention. The purpose of informing a person who has been arrested or detained of the grounds for the arrest or detention enables the person arrested or detained to:

  • remedy any mistake, misapprehension, or misunderstanding in the mind of the arresting or detaining authority;
  • make use of the other rights that are set out in this section - particularly, the right to consult a lawyer under section 23(1)(b) - as the enjoyment of these rights is contingent on the detained or accused person having "adequate knowledge of the reasons for detention or arrest"; [486]
  • Furthermore, once a suspect is able to identify the act or omission for which he or she is arrested, the suspect might "make informed decisions about whether to make a statement to the police, [...] co-operate in the giving of body samples, participate in an identity parade, show where exhibits are to be found, and co-operate in other aspects of the police inquiry." [487]

When should a person be informed of the reasons for the arrest or detention and what information should be provided?

Although section 23(1)(a) states that this information must be given at the time the arrest is made or a person is detained, the courts have said that such a requirement should not be taken literally where the enforcement officer cannot comply.

The courts have held that section 23(1)(a) requires that the person is given sufficient information to appreciate the nature and extent of the jeopardy they are in. [488] In most cases this would involve identifying the date, place, and act in question. [489] The person need not be told of the exact charge contemplated or the reason in technical or precise language but the person should have an appreciation of the "total situation" as it impacts on him or her. [490] In certain cases, the reasons for the arrest or detention may be so obvious from the conduct that preceded it that there is no need to expressly inform the person of the reasons for the arrest. [491]

One Canadian commentator has observed: "The information conveyed to the arrested or detained person [needs only be] such as to reasonably enable him to decide whether or not to resist arrest as well as make an informed choice concerning the right to retain and instruct counsel." [492]

The courts have also said that the person must be given sufficient information to enable them to make an informed decision about whether or not to waive their right to counsel. If a person is given an inadequate explanation as to the reasons for his or her arrest, their subsequent decisions not to ask for legal representation may be considered invalid. [493] Similarly, if the enforcement officer misleads the arrested or detained person as to the reasons for his or her arrest, then the arrest or detention is considered to be in breach of this section. [494] It may also be considered a breach of this section if the indication given to a person is that they have been arrested on significantly less serious charges than the ones the police are contemplating.

When reasons for an arrest change

If a law enforcement officer becomes aware of other information that:

  1. gives effect to a fundamental and discrete change in the purpose of the investigation; and
  2. may give rise to new and further charges

then the officer must advise the person arrested or detained of the new reasons for his or her arrest or detention. [495]

Key cases

R v Goodwin [1993] 2 NZLR 153; Caie v A-G 6/4/01, Fisher J, HC Auckland CP334-SD99; R v Jones, 16/7/1993 CA 312/92; R v Robinson CA 16/97, 12 May 1997;R v Gibbons (1997) 14 CRNZ 552; R v Tawhiti [1993] 3 NZLR 594; R v Schriek [1997] 2 NZLR 139; R v Small (1998) 52 CRR (2d) 315 (Alta CA); R v Evans [1991] 1 SCR 869.

Section 23(1)(b): The right to counsel and instruct a lawyer without delay

Section 23(1)(b) of the Bill of Rights Act is as follows:

Right to counsel
Everyone who is arrested or who is detained under any enactment shall have the right to counsel and instruct a lawyer without delay and to be informed of that right

Policy triggers: do I need to consider section 23(1)(b)?

Are you developing a policy or practice that establishes or affects procedures for dealing with persons arrested or detained (the "detainees") under any statutory power? You should consider whether your policy or practice is consistent with section 23(1)(b) if:

  • it regulates the procedures for providing access to a lawyer;
  • it provides procedures for informing detainees that they may be able to gain access to free legal assistance;
  • establishes guidelines on procedures relating to the questioning of detainees.

What every policy analyst needs to know about section 23(1)(b)

  • There are essentially four elements that make up the right to legal representation. These are:
  1. the right to consult counsel;
  2. the right to instruct a lawyer;
  3. the exercise of those rights without delay; and
  4. the right to be informed about those rights.
  • The right under section 23(1)(b) not only ensures that detainees have access to the information and advice they need before being interviewed by law enforcement officers, it also enhances their representation.
  • In addition to protecting the various rights of detainees, counsel may assist the law enforcement agency by: providing information and advice on technical matters, negotiating an agreement between the agency and a detainee, and/or improving communications between the arresting officer and a detainee.
  • The phrase "without delay" does not mean instantly or immediately, but the information must be given before the detainee's legitimate interests are jeopardised.
  • The expression "without delay" applies equally to the detainer and the detainee. Although a detainee has the right to consult and instruct a lawyer without delay, this right must be exercised without delay - failure to do so may constitute a forfeiture of the right.
  • Enforcement officers do not have to wait indefinitely for a lawyer sought by a detainee to arrive - they are only required to allow a reasonable opportunity for consultation.
  • The right to consult and instruct a lawyer must be communicated to the detainee effectively.
  • Enforcement officers must facilitate contact with counsel. This means:
    • a detainee who lacks sufficient means to pay for legal representation should be advised of the existence of free legal advice schemes;
    • access to counsel should normally be in person. However, in certain circumstances (particularly in the case of drunk drivers) it may be made by telephone;
    • generally, legal consultation should be in private.
  • Enforcement officers must ensure that any waiver of the right to legal representation is informed and voluntary.
  • The right in section 23(1)(b) does not extend to the right to telephone a friend or family member unless such a call is necessary to enable the detainee to contact his or her lawyer.
  • When a detainee seeks to exercise his or her right to legal representation, an enforcement officer has a duty to refrain from taking any positive or deliberate step to elicit evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel.
  • In such circumstances, enforcement officers cannot merely refrain from taking any positive or deliberate step to elicit incriminating evidence - they should avoid acting in a manner that will have the effect of drawing out information in the absence of a detainee's legal representative.
  • A detainee may elect to waive the right to counsel. A waiver is not effective unless it can be shown that the detainee had a proper understanding of the protection under the right and the decision was an informed and voluntary one.
  • Enforcement authorities should, therefore, be aware of any barriers that may affect a detainee's ability to make an informed choice to exercise or waive the right to counsel.

Measures to achieve compliance

Consider what extra training or resources law enforcement officers need to help them comply with their obligations under this section. Consider developing checklists to help officers ensure the detainee understands about the right to legal representation.

Your department should also develop guidelines on how an enforcement officer may facilitate contact with a lawyer. These guidelines should:

  1. remind the enforcement officer that a detainee who lacks sufficient means to pay for legal representation should be advised of the existence of free legal advice schemes;
  2. indicate the circumstances where access to counsel may be made by telephone as opposed to being in person; and
  3. advise the enforcement officer that legal consultation, in general, should be in private.

Consequently, when a detainee seeks to exercise his or her right to consult a lawyer, it would be advisable for the enforcement officer to provide the detainee with:

  • a list of available lawyers drawn up by various law societies;
  • a telephone book (both the yellow and white pages, if available);
  • a telephone, including a cell-phone where a land-line is not available.

The information set out above is based on the decisions of courts in New Zealand and overseas. If you require further information, refer to the following discussion on section 23(1)(b).

Related rights and freedoms

If you are considering whether the policy or practice that you are working on raises section 23(1)(b) issues, you will also need to consider whether the policy or practice is consistent with the remaining provisions of section 23, particularly sections 23(1)(a) and 23(4) of the Bill of Rights Act.

You may need to consider:

  • the right to adequate time and facilities to prepare a defence (section 24(d));
  • the right to a fair hearing (section 25(a));
  • the right to be present at the trial and to present a defence (section 25(e));

If the policy infringes section 23(1)(b), it may also infringe one or more of the other rights.

Further discussion on the meaning of section 23(1)(b)

Section 23(1)(b) serves the same purpose as the rule laid down in the United States by Miranda v Arizona. [496] In Miranda the US Supreme Court interpreted the privilege against self-incrimination as requiring that a suspect be informed of his right to consult and instruct a lawyer prior to police questioning. The right to legal representation is also found in section 10(b) of the Canadian Charter.

There are essentially four elements that make up the right to legal representation. [497] These are:

  • the right to consult counsel;
  • the right to instruct a lawyer;
  • the exercise of those rights without delay, and
  • the right to be informed of these rights.

Why is it necessary to inform a suspect that he or she has the right to counsel and to instruct a lawyer?

The right to consult with and instruct a lawyer is intended to correct the imbalance between arrested or detained persons and the informed and coercive powers available to the state. [498] The right under section 23(1)(b) not only ensures that arrested or detained persons have access to the information and advice they need before taking part in the interview with law enforcement officers but it also enhances the representation of such persons.

In addition to protecting the various rights of arrested or detained persons, counsel may: provide information and advice on technical matters, negotiate an agreement between the agency and the arrested party and/or improve communications between the arresting officer and the arrested or detained persons. The presence of counsel also prevents the use of unacceptable tactics on the part of the arresting officer and ensures that the position of the arrested or detained persons is fully and accurately advanced.

What does it mean to exercise the right to legal representation without delay?

The New Zealand courts have held that the right to legal representation without delay is not synonymous with instantly or immediately. [499] However, any delay in advising the arrested or detained person must be reasonable. [500] The reasonableness of the delay will be dependent on the facts of the case, but may be dependent on either the period of time that is lapsed, [501] or the prejudice to the accused that results from the delay. [502]

The preamble to section 23(1)(b) confers the right to consult counsel to everyone who is arrested or detained. It does not contemplate that persons be advised they have the right before an arrest or detention takes place. Nonetheless, Canadian courts have considered valid advice given before an arrest or detention, provided there is "a close factual connection relating to the [advice] to the detention and the reasons therefor." [503] However, as the courts in New Zealand have not addressed this point, it is recommended that agencies instruct their law enforcement officers to advise persons of their rights once they have been arrested or detained even if that advice has been given previously.

Can an arrested or detained person take his time when deciding whether to consult and instruct a lawyer?

The New Zealand courts have held that the interests of justice and the obligations inherent in human rights alike call for the expression "without delay" to apply equally to the detainer and the detainee. Although a suspect has the right to consult and instruct a lawyer without delay, the suspect must exercise this right without delay. [504] Failure to do so may constitute a forfeiture of the right.

The consequence of this approach is that where the circumstances require or permit personal attendance of counsel, the enforcement officer is not obliged to wait indefinitely for a lawyer sought by a suspect to arrive. They are required to allow for a reasonable opportunity for consultation. Again, what is reasonable is a question of fact, dependent on the particular circumstances and the statutory context. [505] However, agencies need to be cautious about acting to circumvent the right.

In R v Etheridge, [506] the Court of Appeal identified a number of factors that were to be indicative of whether a delay was reasonable or not. These factors included whether:

  1. the law enforcement officers knew the person wanted legal counsel;
  2. the law enforcement officers knew arrangements had been made for a solicitor to represent him;
  3. there was a pressing need or great urgency confronting the enforcement officers requiring them to conduct the interview without the lawyer being present.

What does it mean "to be informed" that you have the right to a lawyer?

Having determined when it should be given, the next matter that needs to be considered is the precise content of the advice. The leading case on the meaning of "informed" is R v Mallinson, [507] in which the Court of Appeal confirmed the view that the obligation on the arresting officer is to communicate the nature of the right in a clear, meaningful way that gives effect to the right. [508]

The determination of whether there has been effective communication will always be a question of fact, but there are a number of factors that will be considered to go to show whether the right has been given effect to. These include whether the person arrested or detained:

  • fully understood what the right entitled him or her to do or refrain from doing;
  • had the mental, education, or language skills to fully understand what the role of counsel was and what the implications were if he or she waived the right.

There may also be occasions where it is necessary for the enforcement officer to re-advise the arrested or detained person that he or she has the right to legal representation. Such occasions may include situations where:

  • the circumstances surrounding the arrest have changed;
  • there has been a substantial lapse in time between the initial arrest and the commencement of questioning; or
  • the person detained or arrested elects to participate in a further evidential process. [509]

Having advised the arrested or detained persons that they have the right to consult a lawyer, is the arresting officer under an obligation to actually facilitate contact with the lawyer?

The New Zealand courts have been very clear that once an arrested or detained person indicates a desire to consult a lawyer the arresting officer is under a duty to assist the person to make that contact. As Richardson J stated in MOT v Noort and Police v Curran: [510]

That right can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation on the enforcement officer to facilitate contact with a lawyer.

The New Zealand courts have routinely held that an individual who is unable to contact one lawyer "should normally be allowed to try one or two others". [511] However, once the individual has made several unsuccessful attempts to contact various lawyers, then the police would be within their right to request the detainee to carry on with the testing procedure (in the case of drunk drivers) or commence their interrogation of the accused (in other situations).

The right in section 23(1)(b) does not extend to the right to telephone a friend or family member unless such a call was necessary to enable the person to contact his or her lawyer. [512]

In order to ensure that contact with a lawyer has been adequately facilitated, the following additional points should be noted:

Legal aid: Where an arrested or detained person, who has been informed of his or her right to consult and instruct a lawyer, advises the enforcement officer that he or she cannot afford one, the enforcement officer should advise the arrested or detained person of the existence of free legal advice schemes (such as the Police Legal Assistance Scheme). [513] Failure to do so may lead to the exclusion of any evidence obtained thereafter.

Choice of counsel: In New Zealand an accused has a prima facie right to appoint a lawyer of his or her own choice, unless the accused lacks sufficient means to retain counsel and is relying on the state to fund his or her legal representation. Where an accused person is legally assisted, he or she has no right to counsel of choice. This contrasts with the position in Canada. [514]

Consultation with a lawyer in person or over the phone: Unless a person elects to consult with his or her lawyer by phone, or because the idiosyncracies of the breath and blood alcohol legislation regime demand that consultation in most cases take place by phone, the police are under a duty to refrain from attempting to elicit evidence from any person who seeks to exercise his right to legal representation until they have consulted with the lawyer in person.

Consultation in private: In general, the police should allow a detainee to consult with a lawyer in private. [515] However, the right to privacy may be waived or departed from where there is good reason. [516] Good reason may exist where there is "a realistic prospect of criminal conduct if the suspect is left unsupervised." [517]

May the enforcing authorities interrogate a suspect who makes incriminating statements while waiting for counsel to arrive?

When a suspect seeks to exercise his or her right to legal representation, an enforcement officer is under a duty to refrain from taking any positive or deliberate step to elicit evidence from the suspect until he or she has had a reasonable opportunity to consult with counsel. [518] Any evidence obtained by law enforcement officers as a result of failing to observe the right of the accused not to answer questions may be ruled inadmissible by the courts on the grounds that the evidence was obtained unfairly. [519]

However, it would appear that the courts will make enquiries as to whether the law enforcement officers "elicited" the information before ruling whether the evidence is inadmissible.

The Court of Appeal has addressed the issue of whether enforcement officers could use evidence gained where the accused voluntarily provides information even though he or she is waiting for his or her lawyer to arrive (see for example R v Taylor [520]).

However, the courts have not taken a consistent approach to determining whether a state official elicited the information through unfair practices. [521] It would seem that enforcement officers need to avoid steps that could objectively be regarded as putting pressure on the accused to make statements that may incriminate them.

Can an arrested or detained person waive his or her right to consult counsel?

An arrested or detained person is at liberty to waive his or her right to consult with and instruct a lawyer. The New Zealand courts have adopted a similar approach to the Canadian Supreme Court in holding that the failure to request the right to consult counsel and instruct a lawyer is not of itself a waiver. To amount to a waiver, the person must exercise a conscious choice that is both informed and voluntary. A proper understanding of the right is a pre-requisite for a valid waiver. [522]

The Canadian Supreme Court has taken the view that valid waivers of the equivalent provisions of the Canadian Charter will be rare. In their view, the validity of a waiver is linked to the person's awareness of the rights which the provision was enacted to protect. A person cannot be said to have validly waived his or her right to receive information unless the person was fully appraised of the information he or she was entitled to receive.

According to Lamer J in R v Bartle: [523]

The fact a detainee merely indicates that he knows his rights will not, by itself, provide a reasonable basis for believing that the detainee in fact understands their full extent or the means by which they can be implemented. [524]

Key cases

R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA); MOT v Noort; Police v Curran [1992] 3 NZLR 260; (1992) 8 CRNZ 114 (CA); R v Etheridge (1992) 9 CRNZ 268; Rae v Police [2000] 3 NZLR 452; (2000) 18 CRNZ 182 (CA); R v Kepa 1/7/1999, CA214/99; R v Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118 (CA); R v Taylor [1993] 1 NZLR 647; (1992) 9 CRNZ 481 (CA); R v Read CA 438/00, 14/2/01 R v Bartle [1994] 3 SCR. 173; R v McKenzie (1999) 68 CRR (2d) 155; Miranda v Arizona (1966) 384 U.S 436; R v Read CA 438/00, 14/2/01; R v Kai Ji CA 333/03 8/09/03.

Section 23(1)(c) Determining the validity of the arrest or detention

Section 23(1)(c) of the Bill of Rights Act is as follows:

Habeas corpus
Everyone who is arrested or who is detained under any enactment shall have the right to have the validity of the arrest and detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

Policy triggers: do I need to consider section 23(1)(c)?

  • Is your agency or department working on a policy or developing a practice that enables enforcement officers to carry out powers of arrest or detention?
  • Does the power of arrest or detention take place in remote locations?

If the answer to either of the above is "yes", you may need to consider whether your policy or practice is consistent with the right set out in section 23(1)(c) of the Bill of Rights Act.

What every policy analyst needs to know about section 23(1)(c)

  • The purpose of section 23(1)(c) is to enable a detainee to test the validity of the arrest or detention, so the detainee may be released if the arrest or detention is found to be unlawful.
  • The procedure for hearing writs of habeas corpus in New Zealand is set out in section 9 of the Habeas Corpus Act 2001.
  • Section 9(3) of that Act requires that the date for hearing the application for the writ be no later than three days after the date on which the application is filed.

Measures to achieve compliance

If you are working on a policy or is developing a practice that permits enforcement officials to arrest or detain an individual pursuant to an enactment (or has such a policy or practice currently in place) you need to be aware that:

  1. a detainee has a right to file an application for a writ of habeas corpus before the High Court to test the validity of the arrest and detention; and
  2. the application must be treated as a matter of priority and urgency.

Enforcement officials should be made aware of the elements that make up section 23(1)(c) of the Bill of Rights Act. More importantly, your department should establish the procedures necessary to allow it to respond, in a timely manner, to any application for a writ of habeas corpus filed by an individual who is arrested or detained by an employee of your department.

The information set out above is based on the decisions of courts in New Zealand and overseas. If you require further information, refer to the discussion on section 23(1)(c) below.

Further discussion on the meaning of section 23(1)(c)

What is the purpose of section 23(1)(c)?

One of the most fundamental principles of human rights is "the protection of individual liberty, especially from the undue exercise of state power." [525] As a means of securing the rights of citizens not to be arbitrarily-including unlawfully - detained, the "great writ" of habeas corpus ad subjiciendum has been long accepted as a constitutional protection of basic importance. [526] This principle, which is recognised internationally by way of Article 9(4) of the ICCPR, is reflected in section 23(1)(c) of the Bill of Rights Act, and confers upon an arrested or detained person the right to test the validity of the arrest or detention by way of habeas corpus. If the arrest or detention is found to be unlawful, the arrested or detained person must be released.

The Court of Appeal observed in Bennett v Superintendent of Rimutaka Prison: [527]

In the hands of creative lawyers and Judges it has proved to be a flexible remedy against oppression and unlawful conduct. In recent years its use in this country may largely have been confined to immigration and refugee matters because alternative convenient and specific remedies have been developed to meet particular problems in the general law. Bail laws and legislation relating to child custody disputes are examples. But habeas corpus is not to be shackled by precedent. It will adapt and enlarge as new circumstances require.

What is the procedure for filing a writ of habeas corpus and how soon does an application for a writ of habeas corpus have to be heard by the court?

The right of a detainee to have his or her application for a writ of habeas corpus reviewed by a court without delay is regarded as critical to giving effect to the right. The procedure for hearing writs of habeas corpus in New Zealand is set out in section 9 of the Habeas Corpus Act 2001. Section 9(3) of that Act requires that the date for hearing the application for the writ be no later than three days after the date on which the application is filed.

The Human Rights Committee has found a breach of article 9(4) of the ICCPR in a case where an individual was detained incommunicado for three days during which it was impossible for him to gain access to a court to challenge his detention. [528] This case can be contrasted with that of another where the Committee found no breach of article 9 (4) when the applicant was held for fifty hours without having the opportunity to challenge his detention. [529]

The Human Rights Committee has also been critical where a court, having upheld the application for a writ of habeas corpus, has failed to render its decision "without delay". In Torres v Finland, [530] the Committee held "that, as a matter of principle, the adjudication of a case by any court of law should take place as expeditiously as possible." However, the question of whether a decision was reached without delay depends on the type of deprivation of liberty and on the circumstances of a given case. A period of almost three months between the hearing and the date when the decision was reached is "in principle too extended."

It should be noted that the expression "without delay" has been interpreted to mean that the lawfulness of administrative detention must be directly reviewed by a court and not only after a review by a higher administrative authority. [531] The European Court of Human Rights has said that this does not have to be a "court of law of the classic kind integrated within the standard judicial machinery of the country". [532] But it must be a body that has judicial character and that provides the "guarantees of procedure appropriate to the kind of deprivation of liberty in question". [533]

Key cases

Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616; Hunia v Parole Board [2001] 3 NZLR 425; (2001) 18 CRNZ 534; Hammel v Madagascar (155/83); Torres v Finland (291/88).

Section 23(2) The right to be charged promptly or released

Section 23(2) of the Bill of Rights Act is as follows:

To be charged promptly
Everyone who is arrested for an offence has the right to be charged promptly or released.

Policy triggers: do I need to consider section 23(2)?

You may need to consider if the policy or practice that you are developing is consistent with section 23(2) if it:

  • provides enforcement officers with the power of arrest;
  • establishes procedures for dealing with persons who are arrested.

What every policy analyst needs to know about section 23(2)

  • The right does not require that the person be charged immediately - but requires that an enforcement officer act with a sense of urgency.
  • Section 23(2) does not require a person to be charged immediately on arrest or detention. However, any delay in charging a person merely because it is not administratively convenient to do so, or to allow the Police an opportunity to strengthen their case against the person detailed (for example, by prolonged questioning or by allowing the police time to gather additional evidence to support a charge), could run afoul of the right in section 23(2).

Measures to achieve compliance

The most effective way of complying with section 23(2) is to establish internal procedures to allow an arrested person to be brought promptly before a suitably authorised official for charging. Enforcement officers should be encouraged to decide, as soon as possible, the particular charges that should be laid against the arrested person. If there is insufficient evidence to support the proposed charges, enforcement officers must release the arrested person, but may re-arrest the person if such evidence subsequently becomes available.

The information set out above is based on the decisions of courts in New Zealand and overseas. If you require further information, refer to the discussion on section 23(2) below.

Related rights and freedoms

Section 23(2) relates to the initial stage of the criminal justice process where decisions are being made whether to continue to detain a person. Section 23(3) applies flows on logically from section 23(2) as it enables the person who is arrested to test the validity of the decision to continue to detain him or her and any subsequent decision on whether to charge the person.

Further discussion on the meaning of section 23(2)

The right to be charged promptly or released

Under this subsection, an arrested person has the right to be charged promptly or released. The word "promptly" does not mean that no time is allowed to pass. Time will be required to make decisions (particularly whether there is sufficient evidence to charge the person and, if so, with what) and, as a result, some delay will be unavoidable. This was confirmed by Richardson J in R v Te Kira: [534]

Section 23(2) recognises that some time may have to elapse before a decision to charge can be made and, if so, as to what particular charge should be brought. In its natural and ordinary meaning 'prompt' carries a sense of urgency, of 'acting with alacrity' as the Oxford English Dictionary puts it.

The courts have also noted that there are other reasons where the delay between arrest and charge may be justifiable, such as where the enforcement authorities are urgently called elsewhere, where they wish to briefly question the person, or where they have afforded him or her the right to consult with their lawyer. [535] At the same, time section 23(2) is likely to be infringed where the delay has been brought about in order to achieve an unfair advantage, for example where the delay is to allow the police the opportunity to strengthen their case through prolonged questioning or evidence gathering. [536] It should be noted that a delay in charging a person may lead to an infringement of section 23(3) of the Bill of Rights Act and the right to be brought before a court as soon as possible.

Key cases

R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA); R v Rogers (1993) 1 HRNZ 282

Section 23(3): The right to be brought before a court

Section 23(3) of the Bill of Rights Act is as follows:

To be brought promptly before a court
Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal

Policy Triggers: do I need to consider section 23(3)?

You may need to consider whether the policy or practice that you are developing is consistent with section 23(3) if it:

  • permits enforcement authorities to arrest and detain a person for the purposes of questioning in connection with the commission of offences;
  • is silent on the time-frame for bringing an arrested person before a court or competent tribunal;
  • allows enforcement authorities to detain an arrested person in custody on a charge while continuing to investigate the case against that person;
  • affects the ability of courts to sit or the numbers of judges that may be available to attend hearings (over holiday periods, for example).

What every policy analyst needs to know about section 23(3)

  • The right to be brought before a court is guaranteed to "everyone who is arrested for an offence" not just those who are "charged with an offence".
  • The arrested person must be brought before a judge or a competent tribunal within a reasonable and realistic time period.
  • The time period under consideration runs from arrest until presentation before the court.
  • Delays in bringing a person before a judge caused by delay on a holding charge or for reasons arising out of Police tactics are likely to breach the section.
  • The arrested person needs to be brought before a judicial body that is independent, objective and impartial in determining the issues.

Methods to increase the compliance of your policy with section 23(3)

In order to comply with section 23(3), your department should develop internal procedures that ensure that an arrested person is brought before a judge or a competent tribunal as soon as possible. These procedures may need to include consideration of the availability and accessibility of court venues in other centres or the availability of special sittings.

The information set out above is based on the decisions of courts in New Zealand and overseas. If you require further information, refer to the discussion on section 23(3) below.

Related rights and freedoms

Section 23(3) of the Bill of Rights Act flows on logically from section 23(2).

Further discussion on the meaning of section 23(3)

What is the purpose of the right that is guaranteed under section 23(3)?

Section 23(3) of the Bill of Rights Act requires that everyone who is arrested for an offence and is not released must be brought before a court or some other tribunal authorised by law to exercise judicial power as soon as possible. As noted in one case, the time period under consideration runs from arrest until presentation before the Court. [537] The intention behind section 23(3) is to prevent persons arrested on suspicion of having committed a criminal offence from being arbitrarily or unjustifiably deprived of their liberty.

There are three key aspects to section 23(3) of the Bill of Rights Act:

  1. the judicial control must be "as soon as possible";
  2. judicial scrutiny must be automatic - it cannot depend on a previous application by the arrested person;
  3. the arrested person must be heard by the judicial officer in person.

How soon is "as soon as possible"?

The New Zealand courts have acknowledged that the phrase "as soon as possible" does not mean immediately. As stated by Cooke J in R v Te Kira:

The requirements "promptly" [as set out in section 23(2) of the Bill of Rights Act] and "as soon as possible" must be interpreted realistically. For example, a reasonable time may be needed for a decision whether or not to charge a person arrested (as by reference of the case to a senior officer) and, if the person is to be charged, for the process of laying the charge and incidental matters. Further, if having been given the information required by s 23(1)(a) and (b) and s 23(4) the person wishes to make a statement or to wait for the arrival of a lawyer, a reasonable time may be allowed for either of those stages.

The inclusion of the phrase "as soon as possible" is one of the main differences between section 23(3) of the Bill of Rights Act and Article 9(3) of the ICCPR - upon which it is based - as the latter provision uses the term "promptly" to describe the time-frame in which the police must bring arrested persons before a judicial authority. However, the Human Rights Committee has been vague on the exact meaning of this phrase, commenting only that in no event may this period last more than a "few days". [538]

Although the enforcement authorities are expected to take whatever steps are necessary to ensure that an arrested person is accorded the rights contemplated by this section, the courts have recognised that they can only do so "within the limits of proper administrative and financial constraints." [539] Enforcement officials are therefore required to take steps in fulfilment of these obligations where such steps are available. For instance, in R v Shriek [540] the accused was arrested in Greymouth on cheque charges on a day when the Court was not sitting. The Court of Appeal held that the circumstances of the case did not necessitate the convening of a special sitting of the court in compliance with section 23(3) given the nature of the offending. However, there may be circumstances where compliance with section 23(3) will point towards a duty on police to transport the person to another centre or to take advantage of the opportunity for a special sitting. [541]

The enforcement authorities may not deliberately keep an arrested person in custody under the pretext of a lesser charge while a more serious charge against that person is being further investigated, nor as a tactical delay while they are gathering further evidence to support a conviction. [542]

Does an arrested person have to be brought before an actual court?

The New Zealand courts have not addressed this point, but section 23(3) appears, like Article 9(3) of the ICCPR, to anticipate that there may be situations where an arrested person is brought before a judicial body other than a court. The Human Rights Committee has stated that such a body must be independent, objective, and impartial in relation to the issues dealt with. [543] A panel of Justices of the Peace appointed to decide whether there was sufficient evidence to hold an individual in custody would likely satisfy such criteria.

Key cases

R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA); R v Shriek [1997] 2 NZLR 139; (1996) 14 CRNZ 449 (CA); R v Greenaway [1995] 1 NZLR 204 (CA); Kulomin v Hungary (521/92).

Section 23(4) The right to refrain from making any statement

Section 23(4) of the Bill of Rights Act is as follows:

Right to silence
Everyone who is
(a) Arrested; or
(b) Detained under any enactment
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

Policy triggers: do I need to consider section 23(4)?

You may need to consider whether the policy or practice that you are developing is consistent with section 23(4) if it:

  • enables law enforcement officers to question detainees, either in connection with a statutory power of entry or more generally;
  • establishes guidelines on what steps to take when a detainee has exercised the right to silence;
  • makes it an offence for a detainee to refuse to respond to questions put to him or her by the enforcement authorities;
  • enables enforcement officers to use techniques or devices to elicit information from persons who have been arrested or detained on a charge but released on bail, for the purposes of gaining further evidence.

What every policy analyst needs to know about section 23(4)

  • The right protected by section 23(4) comprises two distinct elements:
    • the right to refrain from making a statement; and
    • the right to be informed of that right.
  • Section 23(4) protects the right of persons who are arrested or detained not to make incriminating or prejudicial statements.
  • Although the rights affirmed by this provision begin with the taking into custody, the right extends the period leading to trial and the determination of the charge.
  • The right provides a general immunity from being compelled on pain of punishment to answer questions posed by others.
  • The right presents a general immunity from being compelled to answer questions in situations where those answers may incriminate.
  • Once a detainee has made it clear that he or she does not wish to answer questions, no further attempts may be made to elicit information from the detainee.
  • The exclusion of evidence obtained in breach of section 23(4) is not limited to statements made by the detainee, but extends to include any information disclosed by the detainee following what the court would regard as unfair tactics by enforcement officers.

Measures to achieve compliance

Adherence to the right to silence is likely to be monitored closely by the courts. If you are considering developing a power to question detainees you will need to ask:

  • whether the power is essential to the operations of the agency;
  • the purpose of the power;
  • what steps could be taken to achieve that purpose without requiring the detainee to answer questions;
  • whether there are adequate procedural protections surrounding the questioning;
  • whether you will need to use the information in subsequent legal proceedings against the detainee, or whether the use will be restricted;
  • what steps that you wish to take to ensure compliance with the power.

You may also need to establish guidelines to ensure that the detainee has the opportunity to obtain advice and legal representation during questioning. The detainee being questioned should also be allowed to act on that advice.

The information set out above is based on the decisions of courts in New Zealand and overseas. If you require further information, refer to the discussion on section 23(4) in the Bill of Rights Act Guidelines.

Related rights and freedoms

When developing your proposals that might give rise to issues under section 23(4) you should also whether the proposals are consistent with the remaining provisions in section 23, particularly section 23(1)(b). You should also consider:

  • the right not to be compelled to provide information (section 14);
  • the right to be secure against unreasonable search and seizure (section 21);
  • the right to a fair trial (section 25(a));
  • the right to be presumed innocent (section 25(c));
  • the right not to be compelled to be a witness or confess guilt (section 25(d));
  • the right to the observance of principles of natural justice (section 27(1)).

In addition to the Bill of Rights Act, each of these aspects of the right to silence is protected, to varying degrees, by other statutory provisions or by common law rules. For instance, the right to refrain from speaking is protected indirectly through the law's insistence on the voluntariness of confessions and through the exercise of the discretion to reject confessions on the grounds of unfairness. Other expressions of the right to silence include the caution that is given under the Judges Rules, and in the judicial warnings that adverse inferences are not to be drawn from exercising the right to silence.

Further discussion on the meaning of section 23(4)

What is the right to silence?

Section 23(4) of the Bill of Rights Act protects the right of persons who are arrested or detained under any enactment not to make a statement. Section 23(4) protects the right of silence before trial whereas section 25(d) protects the right at the trial itself. However, as alluded to by the majority in R v Barlow, [544] there is a reasonable degree of overlap between the two rights. Both these sections put into legislative form the right to silence that existed before the Bill of Rights Act was passed. The "right to silence" has been described as an "accumulation of a number of Related rights and freedoms or liberties of [suspects] or accused persons." [545] In Smith v Director of Serious Fraud Office, [546] Lord Mustill listed the various aspects that are protected by the right as follows:

  • a general immunity from being compelled on pain of punishment to answer questions posed by others;
  • a general immunity from being compelled to answer questions whose answers may incriminate;
  • a specific immunity for those under police questioning on suspicion of criminal activity from being compelled to answer questions;
  • a specific immunity for those on trial from being compelled to give evidence;
  • a specific immunity for those charged with an offence from having questions put to them by police or others in authority; and
  • a specific immunity for those on trial from having adverse comment made on their failure to answer questions put to them prior to trial or at trial.

What are the components of the right to silence?

The right protected by section 23(4) comprises two distinct elements:

  • the right to refrain from making a statement; and
  • the right to be informed of that right.

The right to refrain from making a statement extends to the production of documents and verbal statements.

The right to silence is often considered by the New Zealand courts in conjunction with the rights accorded to arrested or detained persons under section 23(1)(b) of the Bill of Rights Act. In cases where suspects and accused persons are advised of their right to consult a lawyer and they indicate a desire to do so, the enforcement authorities are obliged to cease any attempt to gain information from them under their lawyers arrive. In cases where suspects and accused persons were not advised of their right to consult a lawyer, the courts have, in general, excluded any confessions subsequently obtained.

When does the right to silence apply?

The right to refrain from making a statement commences when a person has been arrested or detained under any enactment. [547]

The right affirmed by section 23(4) protects accused persons throughout the period they are placed on remand and also the time they are released from police custody.

The majority in the Court of Appeal in Barlow held that although the rights affirmed by this provision begin with the taking into custody, they did not cease to operate when the person was released on bail. It could continue its effect down to trial and the determination of the charge so long as the police attempt to obtain information from the accused by whatever means.

Whose conduct will infringe the right?

The approach in Barlow is consistent with that taken in Canada. In Broyles v R [548] the Supreme Court of Canada held that the police may not elicit confessions from an accused through the use of a undercover officer or an informer. However, Iacobucci J did note that:

In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence. [549]

Iacobucci J added that in order to determine whether or not the informer is a state agent:

...it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused...only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange.

It would therefore appear that the right to silence may not be infringed in situations where a person suspected of committing an offence divulges incriminating information to a person with whom he or she has a pre-existing relationship that included the imparting of personal confidences and where the recipient of this information makes it known to the police.

What does the right to silence actually mean?

Once a suspect or accused person has expressed a desire to exercise his or her right to silence as guaranteed in section 23(4), the police are obliged to cease questioning him or her either directly or by deception or trick. [550] To give a real meaning to the right, the courts have been quick to exclude statements obtained by persistent questioning after the suspect or accused has made it clear that he or she does not want to answer questions. [551]

The exclusion of evidence obtained in breach of section 23(4) is not limited to statements made by the suspect or accused, but extends to include any information disclosed by the accused following what the court would regard as unfair tactics by enforcement officers. [552] For example, the police cannot continue to question the accused once the lawyer for the accused has left after informing the police that the accused does not wish to answer questions. [553] Similarly, enforcement officers cannot use a third party to actively elicit information from the accused in circumstances where the use of the third party undermines the right to silence. [554]

Key cases

R v Barlow (1995) 14 CRNZ 9 (CA); R v Taliau 30/6/99, CA99/99; R v Taumata (Ruling No 4) (1997) 15 CRNZ 451; 4 HRNZ 297; Broyles v R (1991) 68 CCC (3d) 308 (SCC); Smith v Director of Serious Fraud Office [1992] 3 All ER 456;

Section 23(5): The right to be treated with humanity and respect

Section 23(5) of the Bill of Rights Act is as follows:

Humanity and dignity
Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

Policy Triggers: do I need to consider section 23(5)?

Section 23(5) is essentially concerned with ensuring that detainees are kept in facilities that meet minimum standards. Are you currently working on a policy or developing a practice that:

  • enables the state to detain individuals?
  • permits the enforcement authorities to hold persons for any length of time?
  • authorises the enforcement authorities to restrain detainees?
  • allows the enforcement authorities to hold individuals in amenities that have limited facilities or services for the care and safety of detainees?
  • enables law enforcement officers to undertake personal searches of persons detained in custody?

If so, you may need to consider whether your policy or practice is consistent with the right set out in section 23(5) of the Bill of Rights Act.

What every policy analyst needs to know about section 23(5)

  • Section 23(5) is essentially concerned with ensuring that, where persons are detained by the state, the conditions under which they are detained conform with commonly accepted standards.
  • The term "deprivation of liberty" refers to broader forms of detention than just those used in law enforcement.
  • The application of the right extends to all forms of detention and includes all forms of detention after conviction.
  • Any person deprived of liberty under the laws and authority of the New Zealand government has the benefit of this right.
  • In considering whether a detainee has been treated with humanity, consideration will be given to the degree of suffering, both physical and mental, to which the detainee has been subjected.

Methods to increase the compliance of your policy with section 23(5)

When developing policies or procedures for detaining persons, consider whether there are any appropriate international standards that may be of assistance when developing guidelines. For example, the Standard Minimum Rules for the Treatment of Prisoners establishes the minimum conditions for the treatment of prisoners.

You will also need to consider what training is required to enable staff to comply with the guidelines.

The information set out above is based on the decisions of courts in New Zealand and overseas. If you require further information, refer to the discussion on section 23(5) below.

Related rights and freedoms

When considering whether your policy or practice complies with section 23(5), you should also stop to consider whether it is consistent with the right not to be subject to cruel, degrading, or disproportionately severe treatment or punishment (section 9 of the Bill of Rights Act).

Further discussion on the meaning of section 23(5)

Whenever a person is deprived of liberty

The term "deprivation of liberty" is not confined to the initial stages of the criminal process. As noted by Richardson J in R v Barlow: [555]

Section 23(5) [...] applies to any deprivation of liberty. The White Paper, para 10.102, notes that the provision clearly has relevance to standards of police detention, prison administration and so forth and that there is an overlap between it and the prohibition of torture and cruel, degrading or disproportionately severe treatment or punishment in (now) s 9. In the draft Bill accompanying the White Paper the present s 23(5) was included along with the present s 22, the right not to be arbitrarily arrested or detained, and parts of the present s 23 under the section heading (now given to s 22) of "Liberty of the person". It could equally be included as subs (2) of s 8. Its presence in s 23 does not assist in determining the reach of s 23(4).

Any person deprived of liberty under the laws and authority of the New Zealand government, whether in a police cell, prison, correctional institution, hospital - particularly a psychiatric hospital - an asylum processing facility, or elsewhere have the benefit of this right.

Treated with humanity and with respect for the inherent dignity of the person

As stated previously, this provision complements the prohibition on torture and cruel, degrading, or disproportionately severe treatment or punishment, as set out in section 9 of the Bill of Rights Act. Persons deprived of their liberty may not be subject to such treatment or punishment, or to any constraint other than that resulting from the deprivation of liberty. Respect for the dignity of such persons must be guaranteed under the same conditions as that of free persons. As noted by the Human Rights Committee, persons deprived of their liberty enjoy all the recognised rights, subject to restrictions that are unavoidable in a closed environment. [556]

A person who is detained is treated with humanity in circumstances where the form of detention does not give rise to feelings of anguish and inferiority capable of humiliating and debasing a detainee. [557] The conditions and circumstances under which a person is detained, and purpose of the detention, are significant in determining whether a person has been treated with humanity. It is important in this regard to note that the totality of circumstances under which a person is detained may help determine whether a person is treated with humanity. [558]

It is important to note that the Standard Minimum Rules for the Treatment of Prisoners, which were first adopted by the United Nations in 1955, set out in detail the minimum conditions which are suitable in the treatment of prisoners, including those under arrest or awaiting trial. Among the requirements in these Rules are minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of a separate bed and provision of food of nutritional value adequate for health and strength. The Human Rights Committee has observed that these are minimum requirements which should always be observed, even if budgetary considerations may make compliance with these obligations difficult. [559]

What type of conduct would fall within section 23(5)?

Although a person's rights and liberties are subject to a number of limitations simply by virtue of being deprived of their liberty, section 23(5) makes it clear that there is a residue of basic rights which they may not be denied; and if they are denied them, then they are entitled to legal redress.

Unfortunately, the New Zealand courts have had little opportunity to examine the type of conduct that would be considered contrary to this section. But in those cases where they have, the courts have looked at the degree of suffering, both physical and mental, that the detained person has been subjected to. In Ministry of Transport v Entwisle, [560] the accused was acquitted of a charge of refusing to provide a blood sample for the purpose of a drink-driving investigation on the ground that the rough treatment meted out to him by the police - which had left him "shocked and distressed" - breached section 23(5). In Harris v A-G [561] the accused was awarded exemplary damages and damages for a breach of section 23(5) arising out of a beating which had been inflicted upon him by the police.

These cases reflect the decisions of the Human Rights Committee, which has held that ICCPR Article 10(1) is violated when a prisoner is held incommunicado for any length of time; [562] is beaten by enforcement officers; [563] is shackled and blind-folded; [564] is refused medical attention; [565] is subjected to ridicule; [566] is denied reading facilities and is not allowed to listen to the radio; [567] or is confined to his cell for an inordinately long period of time. [568] To prepare prison food in unsanitary conditions [569] and to place restrictions on a prisoner's correspondence with his family [570] also infringe ICCPR Article 10(1).

Key cases

R v Barlow (1995) 14 CRNZ 9; 2 HRNZ 635 (CA); Ministry of Transport v Entwisle [1990-92] 1 NZBORR 374; Harris v A-G 23/7/99, Durie J, HC Masterton CP7/96; A v Nia Nia T13/96, HC Gisborne, 15/8/1996, Williams J; Udompon v Minister of Immigration & Anor CP325-SD01, HC Auckland, 24 October 2003, Heath J Mukong v Cameroon Communication No. 458/1991, HRC 1994 Report, Annex IX.AA; Peers v Greece Application 28524/95 (2001) 33 EHRR 51.

[Next page]


Footnotes:

  1. For the sake of simplicity, future references to "detention" should be read to mean "arrest or detention".
  2. The phrase "under any enactment" was not included within the White Paper and the first version of the Bill of Rights Bill, which was introduced into the House of Representatives in 1989. The phrase was inserted by the Select Committee following submissions it received expressing concern about the risks that a failure to qualify the word "detention" may lead to excessive litigation.
  3. You may still need to consider whether the detention is arbitrary for the purposes of section 22 of the Bill of Rights Act.
  4. R v Goodwin [1993] 2 NZLR 153.
  5. R v Goodwin [1993] 2 NZLR 153.
  6. Caie v A-G 6/4/01, Fisher J, HC Auckland CP334-SD99.
  7. R v Jones 16/7/1993 CA 312/92.
  8. See Caie v A-G, 6/4/2001, Fisher J, HC Auckland CP334-SD99.
  9. R v Jones 16/7/1993 CA 312/92.
  10. R v Gibbons (1997) 14 CRNZ 552, 559. See also Nicholson v Police (1993) 11 CRNZ 126. Section 316(1) of the Crimes Act 1961 provides that an arresting officer may not need to advise the person of the reasons for the arrest if the reasons are obvious in the circumstances.
  11. Beaudoin & Mendes, The Canadian Charter of Rights and Freedoms (3rd ed), at pp 11-15.
  12. Rv Robinson CA 16/97, 12 May 1997. See also R v Tawhiti [1993] 3 NZLR 594 and R v Small (1998) 52 CRR (2d) 315 (Alta CA) in which the accused was not given sufficient detail as to why he was detained. His response that he did not want a lawyer was, therefore, an invalid waiver of his right to counsel.
  13. R v Tawhiti [1993] 3 NZLR 594.
  14. R v Jones CA312/92 17/7/93, (at p 8) and R v Evans [1991] 1 SCR 869 at 892-3.
  15. Miranda v Arizona (1966) 384 U.S 436. For the latest statement by the Supreme Court on Miranda warnings, see Chavez v Martinez 538 U.S _(2003). In this case the Court held that police questioning in the absence of Miranda warnings, even questioning that is overbearing to the point of coercion, does not violate the constitutional protection against compelled self-incrimination, as long as no incriminating statements are introduced at the suspect's trial.
  16. R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA).
  17. Richardson J in MOT v Noort; Police v Curran [1992] 3 NZLR 260; (1992) 8 CRNZ 114 (CA).
  18. R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA).
  19. See, for instance, Toki v Police, 21/7/94, Doogue J, HC Nelson AP17/94.
  20. Moki v Police (1992) 8 CRNZ 617.
  21. Barr v MOT [1993] 1 NZLR 703; (1992) 8 CRNZ 626.
  22. R v Schmautz [1990] 1 SCR 398, 416.
  23. As Richardson J observed in MOT v Noort; Police v Curran "if the detainee wishes to avail himself or herself of the right to a lawyer that must be done without delay on his or her part."
  24. Section 72(1)(b) of the Transport Act 1998 provides that a suspected drunk driver has ten minutes in which to decide whether he or she wishes to undergo a blood test. For a discussion on when the 10 minutes commences see Rae v Police [2000] 3 NZLR 452.
  25. R v Etheridge (1992) 9 CRNZ 268.
  26. R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707.
  27. See too R v Kai Ji CA 333/03 8/09/03 where the Court of Appeal discusses the issue in the context of a person with English as a second language.
  28. See Rae v Police [2000] 3 NZLR 452; (2000) 18 CRNZ 182 (CA).
  29. MOT v Noort; Police v Curran [1992] 3 NZLR 260; (1992) 8 CRNZ 114 (CA).
  30. MOT v Noort; Police v Curran [1992] 3 NZLR 260; (1992) 8 CRNZ 114 (CA), per Cooke P, at 274; p 128.
  31. Knapton v Police (1993) 10 CRNZ 515.
  32. See R v Kepa 1/7/1999, CA214/99.
  33. See R v McKenzie (1999) 68 CRR (2d) 155.
  34. See R v Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118 (CA).
  35. See Police v Toki HC Auckland 21/7/94 AP 17/94.
  36. R v Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118 (CA).
  37. R v Taylor [1993] 1 NZLR 647; (1992) 9 CRNZ 481 (CA) at p 651; p 486.
  38. R v Read CA 438/00, 14/2/01.
  39. R v Taylor [1993] 1 NZLR 647; (1992) 9 CRNZ 481 (CA). Despite the statements by the Court upholding the principles underpinning the right, the Court held in this case that statements made by the accused were not elicited by the police.
  40. For an overview of the approaches taken by the Courts see Mahoney "The Right to Counsel" in The New Zealand Bill of Rights Act p539 footnote 82.
  41. Ngatai v MOT 1 HRNZ, Sullivan v Police 1 HRNZ 434.
  42. R v Bartle [1994] 3 SCR. 173.
  43. R v Bartle [1994] 3 SCR. 173, p 205.
  44. NZ Law Commission, Compensating the Wrongly Convicted, para 8 (Parliamentary Paper E 31AJ 1998), available at <www.lawcom.govt.nz>.
  45. NZ Law Commission, Habeas Corpus Procedure (Parliamentary Paper E 31AF 1997), available at <www.lawcom.govt.nz>.
  46. Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616 at p 633-634.
  47. Hammel v Madagascar (155/83).
  48. Portorreal v Dominican Republic (188/84).
  49. Torres v Finland (291/88).
  50. Torres v Finland (291/88) para 7.2.
  51. Weeks v UK A 114 para. 61 (1987).
  52. De Wilde, Ooms and Versyp v Belgium A 12 para 76 (1971).
  53. R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA).
  54. See R v Rogers (1993) 1 HRNZ 282.
  55. R v Rogers (1993) 1 HRNZ 282.
  56. R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA).
  57. See General Comment 8 of the Human Rights Committee.
  58. R v Greenaway [1995] 1 NZLR 204 (CA) [emphasis added].
  59. R v Shriek [1997] 2 NZLR 139; (1996) 14 CRNZ 449 (CA).
  60. R v Greenaway [1995] 1 NZLR 204 (CA).
  61. R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA).
  62. Kulomin v Hungary (521/92).
  63. R v Barlow (1995) 14 CRNZ 9 (CA).
  64. Adams on Criminal Law, Ch 10.11.02 .
  65. Smith v Director of Serious Fraud Office [1992] 3 All ER 456.
  66. For the meanings of these terms, see the discussion on Section 22 of the Bill of Rights Act.
  67. Broyles v R (1991) 68 CCC (3d) 308 (SCC).
  68. Broyles v R (1991) 68 CCC (3d) 308 (SCC) at 318.
  69. See R v Accused M A T (T000515) 7/6/00, Chambers J, HC Auckland T000515.
  70. See R v Barlow (1995) 14 CRNZ 9 (CA); and R v Taliau 30/6/99, CA99/99.
  71. See R v Taumata (Ruling No 4) (1997) 15 CRNZ 451; 4 HRNZ 297 and R v Moresi (No 2) 14 CRNZ 322.
  72. R v Kau CA179/02, 22/08/2002.
  73. See R v Barlow (1995) 14 CRNZ 9 (CA). The majority of the Court in Barlow held that the the third party did not elicit information from the accused as Barlow willingly divulged the incriminating information.
  74. R v Barlow (1995) 14 CRNZ 9; 2 HRNZ 635 (CA).
  75. Human Rights Committee, General Comment 21 (1992).
  76. Peers v Greece Application 28524/95 (2001) 33 EHRR 51.
  77. A v Nia Nia T13/96, HC Gisborne, 15/8/1996, Williams J.
  78. See Mukong v Cameroon, Communication No 458/1991, HRC 1994 Report, Annex IX.AA.
  79. Ministry of Transport v Entwisle [1990-92] 1 NZBORR 374.
  80. Harris v A-G 23/7/99, Durie J, HC Masterton CP7/96.
  81. See, for example, Caldas v Uruguay, Communication No 43/1979, HRC 1983 Report, Annex XVIII.
  82. See, for example, Solorzano v Venezuela, Communication No 156/1983 HRC 1986 Report, Annex VIII.C.
  83. See Jijon v Ecuador, Communication No 277/1988, HRC 1992 Report, Annex IX.I.
  84. See, for example, Mpandanjila v Zaire, Communication No 138/1983, HRC 1986, Annex VIII.A.
  85. See Francis v Jamaica, Communication No 606/1994, HRC 1995 Report, Annex X.N.
  86. See Nieto v Uruguay, Communication No 92/1981, HRC 1983 Report, Annex XX.
  87. See, for example, Cabreira v Uruguay, Communication No 105/1981, HRC 1983 Report, Annex XXI.
  88. See Matthews v Trinidad and Tobago, Communication No 569/1993, HRC 1998 Report, Annex XI.E.
  89. See Espinoza de Polay v Peru, Communication No 577/1994, HRC 1998 Report, Annex XI.F.