Herald on Sunday editorial: A blank cheque for the police

Prime Minister John Key. Photo / Janna Dixon

Prime Minister John Key says some "very serious criminals" will go free if the Government does not urgently change the law to allow police to secretly film on private property.

A Supreme Court decision early this month resulted in the dismissal of charges against 13 of the Urewera defendants and the proposed law change does not change that.

But, Key says, 40 cases now before the courts and 50 current investigations would fail if the evidence gathered by covert video surveillance remained inadmissible. "I don't believe most New Zealanders would be comfortable with that," he said.

That choice of words implicitly casts those who object to what the Government proposes as happy for criminals to roam the land, unchecked by the forces of law and order. However mildly it may be phrased, it's the rhetoric of a man on the campaign trail.

But such soothing blandishments aside, this is what happened: the police engaged in repeated, deliberate unlawful acts and the Government wants to retrospectively make the acts lawful.

It may be tempting to argue that serious criminals should not escape charges of which there is good evidence, even if it is improperly obtained. And the law agrees: the Evidence Act provides that illegally obtained evidence may be ruled admissible if the offence alleged is of a sufficiently serious nature.

The Supreme Court exercised judicial discretion under that very provision in allowing charges against four of the remaining Urewera accused to proceed.

But retrospective legislation validating illegal police conduct is a serious violation of our freedoms as citizens. The idea that police are not above Parliament is deeply rooted in our constitutional framework and our justice system.

The law prescribes procedures that police must follow, not to make life difficult for police but to protect citizens from arbitrary exercise of police power. The word for a country where such protections do not exist is not a democracy: it is a police state.

Experienced defence lawyers quite reasonably demand that Key name an active case relying on the evidence under discussion. Police need not prejudice ongoing investigations, but in some of those 40 cases, they will have already disclosed what evidence they have.

The Supreme Court ruling, remember, applies only to filming on private land and the Government needs to demonstrate the urgency it claims.

The fact is that the High Court ruled two years ago that what the police had done in Te Urewera was illegal. That decision was overturned in the Court of Appeal, and in turn reversed in the Supreme Court this month.

The idea that this bombshell decision has just been dropped in their lap and that Parliament must suspend its normal procedures to take drastic and objectionable legislative action is unsustainable.

In handing down the Supreme Court decision, the Chief Justice said that the police actions were "destructive of an effective and credible system of justice ". A hasty law change that hands a blank cheque to the police is not the way to repair the damage done.