Dr Rodney Harrison: Why Govt plan to overrule top court is wrong

Dr Rodney Harrison QC appeared in the Supreme Court as counsel for Tame Iti and other Operation 8 accused. Photo / Mark Mitchell

Dr Rodney Harrison QC sounds the alarm over a 'serious violation of human rights'

A quick quiz: name one other so-called democracy that would respond to a botched police operation involving deliberate and prolonged police illegality, by immediately passing validating legislation with retrospective effect? No? I thought not.

My objection to the Government response to the Supreme Court's Urewera decision is not that it would confer increased police powers of surveillance in the future. That is a separate debate, on which there has been full consultation.

Rather, it is to rushing through a law change overturning the Supreme Court decision (in favour of what legal outcome remains unclear), and in doing so validating illegal conduct deliberately engaged in by the police. That is, quite simply, contrary to fundamental constitutional principle and a serious violation of individual human rights. New Zealand's obligations under both domestic and international law are to provide an effective remedy for human rights violations, not to legislate them out of existence.

In every country governed by the rule of law if the police act illegally they can be sued. If they obtain prosecution evidence by means of their illegal actions, a court may if appropriate exclude the evidence. If evidence is excluded and the prosecution fails as a consequence, as has occurred with all but four of the Operation 8 accused, that is not a case of criminals going free. It is a case of the rule of law prevailing in relation to individuals accused of crime, who have not been found guilty.

Not everyone will agree with that analysis. Those who believe that if the police charge someone they must be guilty, and that if the charge against them is later dismissed they must have undeservedly "got off", will no doubt support the police and Government view that the "end" (conviction at all costs) here justifies the "means" (police illegality).

But even then it does not follow that, in order to deal with a short-term problem which both police and the Government must have seen coming, the "end" justifies deeming what were police illegalities at the time to be legal conduct, thereby removing vested rights of accused persons to object to evidence and police methods used against them.

Furthermore, the scale of the alleged police difficulties arising out of the Supreme Court decision is being seriously over-hyped. Apparently the Crown Law Office has advised that the decision "could" affect up to 40 pending trials and more than 50 police operations.

What I would like to know is how many of those involved covert surveillance unlawfully conducted on private property. Until the Operation 8 case, very few cases involving hidden camera surveillance of activities occurring on private property had come before the court. None of these had involved unlawful placement of cameras on private property. And in every case the surveillance footage (generally conducted from public property) was admitted in evidence. The Supreme Court ruling turned on the fact that the police activities were unlawfully conducted on private land.

Quite frankly, I seriously doubt that the alleged 40 pending trials and 50 police operations will have involved unlawful entry on private property. The prosecution is required to disclose what investigative techniques it has used to the defence. Had private land been involved, many more cases than just the Operation 8 case would be coming to attention. Furthermore, the initial Operation 8 High Court ruling of October 7, 2009 ruled the covert surveillance activity unlawful. From that point on, the police were on notice that covert surveillance on private land was open to serious challenge.

Even though the Court of Appeal subsequently ruled otherwise (and was in its turn overruled), the Supreme Court ruling cannot have come as any surprise to the police, because it reflected both the previous understanding of the legal position and police practice until Operation 8. Thus, if the police have persisted in using illegal methods of evidence-gathering involving invasions of both private land and personal privacy, their actions in the circumstances will have been reckless at best.

Such actions should not be given a free "get out of jail" card by being retrospectively validated. Rather, as due process of law requires, they should have to take their chances on a case-by-case basis.

The fact that evidence has been illegally obtained does not necessarily mean that it must be excluded at trial. Our Evidence Act prescribes a detailed test by way of a "balancing exercise". Broadly, this involves weighing the position and rights of the accused against the public interest in a sound and effective administration of justice.

Note that the proposed short-term legislative fix is nothing to do with the way the Supreme Court conducted the "balancing exercise". Nor indeed is it about granting increased police surveillance powers, for the future. (A bill which seeks to achieve that is already before Parliament, but the Government has failed to progress it.)

At this stage there is talk of referring the proposed legislation to an attenuated select committee process. I hope that good governance and principle prevails at least to that extent.

Any select committee process will need to scrutinise very closely current claims as to the scale of the problem, and even more importantly the justification for attempting to solve it by removing fundamental rights of an accused in a manner which is without modern precedent.