Our Law Reform efforts
Patrick, Sami, Roderick and the team are not only interested in getting the best results under the existing law for our clients but also in making the existing law (or proposed law) way better than it is (or would otherwise be). To this end Patrick has devoted serious investment to several law reform efforts. Patrick has been invited to be a witness before Government Select Committees on four occasions and his submissions have led the government to abandon proposed restrictions on individual rights and freedoms.
Right to silence – The team’s most important achievement to date
The team’s most important achievement to date has been their work in fighting the Criminal Procedure Bill in 2011. This extremely dangerous piece of legislation would, had it passed in its original form, have seriously damaged the right to silence of all criminal defendants in New Zealand, removed the option of electing a jury trial for a great many offences and permitted a number of other quite extraordinary tragedies which would have all been quite inconsistent with individual rights and freedoms.
The Team’s efforts in fighting that legislation earned mention in Parliament. Here are extracts from a speech given by the Honourable John Boscawen (a former minister in the 2008 -2011 parliamentary term):
Hon John Boscawen –
“…This bill was with the Justice and Electoral Committee for six months. There were a number of submissions from no less a person than the Chief Justice herself, from various Criminal Bar Associations, from the Law Society, and from practitioners. But I want to use this opportunity to publicly acknowledge three particular people who were involved in the submission process, whom the parties that have been involved in negotiating this legislation are all very well aware of. They are Patrick Winkler; his assistant, Samira Taghavi; and Roderick Mulgan. They are three barristers who believe so strongly in upholding the right to silence as a major constitutional principle that they have put an enormous amount of time into this legislation. I imagine they will have spent literally hundreds of hours preparing submissions, studying the provisions of this bill, and lobbying members of Parliament—in particular, Mr Graham, Mr Chauvel, me, the Māori Party, and Mr Power.
We need to pay tribute to those three people because I suspect, with the exception of Mr Power, no other people in New Zealand today have contributed more to the format of this bill than those three with the work they have done. I think Supplementary Order Paper 281 represents a back-down by National. It is a very important back-down, and it is a back-down of major constitutional significance. This Parliament owes a huge debt of gratitude to those three people, as it owes to other New Zealanders who come to this place to make submissions on legislation because they believe that in a civil society we need to have good legislation and they are prepared to spend their time on it….
This 640-page bill, when it came back from the select committee, required a defendant, a person charged by the State, to tell the State—the police or the Crown Law Office, whoever is bringing the prosecution—the aspects of the charges that the defendant disagreed with and what they disputed. If the defendant failed to do that, the judge or jury was able to draw an adverse inference, which means the judge or jury may have found that person guilty when they otherwise would not have.
Why was it important that we take that provision out? I believe that Mr Chauvel outlined the reasons for that very, very well this afternoon. He said that it is a well-known constitutional principle that when one is charged, it is up to the State to prove beyond reasonable doubt that one is guilty. It is up to the State to prove the charges beyond reasonable doubt. It should not be incumbent upon the defendant to assist in their own prosecution. To put it another way, it should not be incumbent upon the defendant to help to find that they are guilty. As this 640-page bill came back before the House, that is exactly what we were setting ourselves up for….
Finally, I once again acknowledge the huge amount of work that Patrick Winkler, Samira Taghavi, and Roderick Mulgan put into convincing me and my colleagues of the importance of that position, just as they put work into convincing other parliamentary colleagues.
I am prepared to leave my contribution at that. Other speakers, I know, will want to speak in the debate. There have been a number of other changes, and I referred to those during my second reading debate. On this occasion I have focused just on the right to remain silent. Thank you.”
In a later speech in Parliament, the Honourable John Boscawen chose to return again to the efforts of the ActiveLegal team:
Hon John Boscawen –
“It is a privilege to stand up and take a call on the 15 bills that have come out of the Criminal Procedure (Reform and Modernisation) Bill … and there are probably few examples of my being so proud of legislation as this one….
The criminal procedure legislation comes before the House with major changes, … Without doubt, the most significant of those changes is the change that truly upholds the right to silence. Without doubt, the bill as originally reported back would have severely curtailed that right to silence which is a breach of a major constitutional provision. … A judge could have found a person guilty when he or she might not otherwise have found that person guilty. The fact is that by requiring a defendant to identify the so-called issues in dispute, the prosecution would have been allowed to fashion the evidence, to train witnesses, to tell witnesses where the cross-examination questions would come from, and to train witnesses in how better to answer the questions put to them by the counsel for the defendant…So the right of ordinary people to stand up to defend themselves and to be proved guilty beyond all reasonable doubt—that major constitutional principle—remains.
This legislation has also received submissions from a number of other organisations—particularly, as we would expect, from organisations associated with the legal fraternity. We have had multiple and additional submissions from the New Zealand Law Society, the Criminal Bar Association—certainly its Wellington branch—and various barristers, and no less a person than the Chief Justice made a submission on this legislation. But I would like to acknowledge three barristers who I think have done more than anyone else in this country to bring to politicians’ attention the issues associated with this bill. I again acknowledge Patrick Winkler and his assistant, Samira Taghavi, and Roderick Mulgan“.
Charles Chauvel MP (interjecting) –
“I would like to record in Hansard that Mr Chauvel is agreeing with me. We have been lobbied by those people. We have been lobbied to do the right thing, and that has been at big personal cost in terms of money and time”