Guilty until proven innocent

Written By: - Date published: 1:01 pm, November 7th, 2009 - 9 comments
Categories: law and "order", Spying - Tags:

We are continuing our chilling progress towards a surveillance state. The Criminal Proceeds (Recovery) Act 2009 is another brick in the wall. Apparently this act reverses the fundamental presumption of innocence with respect to assets (possessions, wealth). If the police decide that your possessions were gained via “significant criminal activity” you are guilty unless you can prove that you’re innocent.

This is the third in a trio of bills that are invasive of privacy and fundamental rights. During its last term Labour introduced the DNA samples (Criminal Investigations (Bodily Samples) Amendment) Bill, and I am aghast that they have continued to support it despite recognising its flaws. Labour also introduced a Search and Surveillance Bill, which was replaced and extended by National. The current version has been described by the Human Rights Commissioner as ‘disproportionately invasive’ and ‘chilling‘. I would like to see the Labour Party explain its current position on both of these pieces of legislation.

The subject of this post, the Criminal Proceeds Bill, was also introduced by Labour. Did they intend to remove the presumption of innocence? I certainly hope not. As far as I (I Am Not A lawyer) can understand this expert analysis, the legislative intent appears to have been to apply a civil (“balance of probabilities”) standard of proof of criminal activity, not a criminal (“beyond reasonable doubt”) standard. It was only pointed out in a related case in England that such a standard may breach the presumption of innocence. (This case was contentious, resulting in a split decision in the High Court, so the legal issue is not simple). Once again I think there is a question mark here for Labour, did they intend to dispense with the assumption of innocence? I hope that they will comment on and clarify this – as on the other related bills above. (I will say again that I am neither a lawyer nor an expert on this legislation, I welcome comment or correction from those with the appropriate expertise.)

There is no question mark for National. Their intention with respect to this bill is perfectly clear – if accused you are assumed to be guilty. And they love it. Here’s Police Minister Judith Collins interviewed by Paul Holmes:

PAUL There is public appetite for getting tough on the gangs, there’s no doubt about that, but the worry people have about some of the legislation you’re proposing, for example now the worry people have about the Criminal Proceeds Act, the Search and Surveillance Bill which has come into the Select Committee, and the Bodily Samples Act, that they encroach too drastically on liberty Minister.
…
let’s talk about the Criminal Proceeds Act first of all, and what this says is instead of the Police having to prove that your wealth is criminally obtained, the citizen will have to prove it is not, so you are no longer innocent till you’re proven guilty.

JUDITH It’s fantastic isn’t it? It’s the only thing we can do to deal with these people.

Got that citizens? It’s “fantastic” that we’re doing away with a fundamental legal principle. Judith knows who “these people” are (I’m guessing it’s anyone who isn’t a “mainstream New Zealander”). Judith knows, she’s coming to get us, and we’re already guilty…

[No Right Turn has more on the interview]

9 comments on “Guilty until proven innocent ”

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  1. BLiP 1
    7 November 2009 at 1:23 pm

    Not only is the presumption of innocence to be stripped away, also about to be removed is the right to silence. This centuries old right which requires that an accuser have sufficient evidence for prosecution, has already been removed in cases involving fraud, and now there is pressure to have it removed from other areas.

    What’s next, habeas corpus? Oh, hang on, that’s already gone! Thanks Labour.

  2. logie97 2
    7 November 2009 at 1:56 pm

    And I don’t suppose this will ever get at the likes of some of the Equiticorp shysters?

  3. ak 3
    7 November 2009 at 1:59 pm

    Staggering, innit.
    And yet another indictment of our “free press”: compare the screeds of “nanny” faux-outrage over Hels signing a piccy for charity, shower-heads and lightbulbs, with the silence over this lurch to SS-like powers.

    Redlogix nailed it on the other thread: let small business owners (and farmers) know that their computers and records can be trawled any time without their knowledge or consent and see the fur fly. Lots of dirty wee tax secrets out there in petit-bourgeoisie-toryland.

    (off-topic but good article and some revealing comments here. “How neoliberalism has failed NZ”. Attacks on “jelly Key” from the right, but shakey on their own prescriptions)

    • the sprout 3.1
      7 November 2009 at 2:02 pm

      let small business owners (and farmers) know that their computers and records can be trawled any time

      that would be a very effective attack point

  4. George D 4
    7 November 2009 at 2:57 pm

    I’d be angry, but that’s just a waste of time. Just disappointed that the people I trusted to make New Zealand a better place are acting as ‘enablers’ for these changers, providing moral support by their silence.

    I don’t think I’ll have the energy to sustain disappointment soon. The next stage is bitter cynicism.

  5. Idiot/Savant 5
    7 November 2009 at 11:02 pm

    Did they intend to remove the presumption of innocence?

    Having dug into the cabinet papers on this a few years back when it was being developed (start here), yes, that was the intention all along. Goff even gloated about it when he introduced the original version of the bill to the House.

  6. ak 6
    8 November 2009 at 1:02 am

    Bugger indeed.

    Not exactly Michael Joseph reincarnate, is he. Darren or Jacinta could be, but.

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