Controversal legal reforms moving forward

The legal right to silence may change under new reforms proposed. Photo / Thinkstock

Eroding the legal principle of the right to silence and narrowing the types of offences that can go before a jury will most likely be one step closer to becoming law this week.

The proposed changes to the criminal justice system are included in the controversial Criminal Procedure (Reform and Modernisation) Bill, which will be reported back from the justice and electoral select committee this week.

The bill will still need majority support to pass its second and third reading to become law. It is unclear whether the Maori Party or the Act Party will continue to support it. The Labour and Green parties oppose it.

The bill represents a major overhaul of the system and has split opinion in both the judiciary and in legal circles.

It is almost certain that the committee, by majority, has retained the most controversial aspects of the bill, including:

* pushing the threshold for electing a trial by jury from offences punishable by up to three months' jail to offences punishable by up to three years' jail

* requiring the defence to disclose issue in dispute before a trial, with the judge or jury able to make an adverse inference if this is not done adequately

The committee report is likely to clarify that disclosing issues in dispute does not require naming witnesses the defence intends to use, or evidence it intends to present.

But if these aspects are retained, it will provoke a strong backlash from criminal defence circles and support from crown prosecutors.

The ability to make an adverse inference was strongly opposed by all levels of the judiciary - including the Chief Justice Sian Elias and Chief District Court Judge Russell Johnson.

The requirement to disclose information pre-trial has been heavily criticised as eroding the accused's right to silence and right against self-incrimination, while shifting the system away from the principle that the onus of proof fell on the prosecution.

These legal principles have been long been a part of the criminal justice system, but Justice Minister Simon Power has repeatedly said that, in general, being a long-established principle is not by itself a strong argument against change.

The pre-trial measure is aimed at speeding up trials by identifying what is and is not in contention before a trial, and to allow a judge or jury to make inferences about defendants' credibility if they continually change their position on aspects of a case as the trial proceeds.

The provisions around name suppression, which would make it harder to be granted, are also likely to be clarified to ensure that they extend to cover everyone who is reporting on a case, not just journalists.

This is to ensure that any internet commentators, such as bloggers, have to comply with name suppression orders.

What: The Criminal Procedure (Reform and Modernisation) Bill will fundamentally alter the criminal justice system

How: It would require the defence to give notice of any aspects of a case that are in dispute before a trial. Failure to do so properly would mean a judge or jury could take the defendant to be more likely to be guilty

Changes: Select committee report will likely leave the proposal unchanged, except to clarify that the defence would not need to disclose which witnesses or evidence it intends to use