I am impressed by the critical comments of Jeff Simpson on this blog relating to the judgment of the Chief Justice in Hamed v R [2011] NZSC 101. Jeff Simpson’s knowledge of the case law far exceeds my own, and I am not in a position to expand on his discourse on the third source, save to say that I have always thought that something of the sort is necessary to authorize a governmental agency to do such things as undertake negotiations, enter into contracts and, indeed, purchase paper clips for the office. But, as Jeff acknowledges, it is a residual freedom subordinate to statutory law, the common law and the royal prerogative. I am, however, hesitant about extending it to cover what might be called the coercive powers of the state which interfere with the basic rights of citizens.
As McGrath J stated in R v Ngan [2008] 2 NZLR 48, a residual form of authority does not permit officials to act in conflict with the rights and liberties of citizens. In particular, any such power is constrained by the Bill or Rights. Residual freedom to act can never justify a breach of protected rights (at [97]).
I am, therefore, unwilling to endorse the third source in its full panoply, that is, that the police can do anything that the positive law does not prevent them from doing. If that is so, the focus has to be on the specific positive law which imposes a restriction on what the police may do. If no restriction exists, or can be found, the police may do what they will. In a free and democratic society committed to fundamental rights this cannot be correct.
Consequently, I find it difficult to reconcile such a non-prescriptive perception of police authority with the basic tenets of democracy. Coercive powers exercised by the state or agencies of the state will or are highly likely to interfere with the fundamental rights and liberties enjoyed by citizens. The citizen, it seems to me, has the right to know where the particular power is based and, within reason, the scope of that power. To hold otherwise is to erode the security of fundamental rights. Nevertheless, I would not articulate this principle as a firm or absolute rule. As I suggest later, there may be circumstances where the specific authority is to be found in the common law, even though the particular power is to some extent coercive and intrusive in character. There is nothing untoward in this; a rule without exceptions is an exceptional rule.
Furthermore, it seems to me incongruous to suggest that a non-statutory power to undertake covert surveillance can be said to be authorized simply because it is not prohibited when the powers of the police to search and enter are already extensively proscribed by statute. In other words, having regard to the extensive statutory powers which have been enacted to control the police powers of search and entry, a third source or residual power to carry out covert surveillance would be anomalous, more particularly when the surveillance utilises modern technology and is as intrusive of a person’s right to privacy as any other form of search and entry.
There is also a pragmatic policy reason which militates against the view that the police can do anything that is not prohibited by a positive law. The police are in the best position to know what powers they need to carry out effective policing. If the police can do anything that is not prohibited the police have no motive or incentive to monitor their authority with a view to ensuring that their powers are enlarged or updated as may be required from time to time. In a sense, this is what happened in Hamed, with the result that the police were castigated by the minority in a way that tends to both demean the Court and undermine the public’s confidence in the police. If this is not the case, the demand for statutory intervention is likely to follow some episode or other when either the public is brought to the view that the legislature should address the issue or the practice is condemned by the courts. The consequences when the condemned practice has been in operation for some time are likely to be divisive and far-reaching. And this again, of course, is what happened in Hamed.
I would prefer to disregard the third source altogether and approach the issue by examining the statutory law and common law to ascertain whether the police activity in question can be said to be authorized. As there is no statutory authority for covert surveillance attention would immediately focus on the common law. The common law, it is to be noted, is not coterminous with the third source. Whereas the third source is open-ended in that the power exists unless it is prohibited, the common law provides positive authority. It is also more flexible and can adjust to developments, such as technological advances or the emergence of a deep and universal respect for fundamental rights. Thus, I would hold that as a general rule the common law today does not authorize the police to exercise any powers relating to detention, search, arrest, or entry on to property without specific statutory authority. Times have moved on and so has the common law. The mistake the advisers to the police made is that they confused the open ended nature of the third source to do whatever is not prohibited with the common law, the dynamic of which means that it will and does adjust to meet the needs and expectations of the times, including respect for human rights.
The Chief Justice’s unnecessarily wide statement that the police cannot do anything that is not authorized by statute is based on a misunderstanding as to the way police powers developed. The status of police officers derived from the common law. Their general duty was the preservation of the peace and they gained their powers from their status as police. Over time more and more powers became limited or regulated by statute. What legislatures have not done is codify the general duty of the police. There is, for example, no statutory equivalent to the oath that police officers take to “keep the peace and prevent offences against the peace”. And what has still not been sufficiently spelt out by statute are the police powers of inquiry and investigation. To some extent the Search and Surveillance Bill before Parliament will rectify this gap. But, as I have indicated, it may be safely said today that, as a general rule, the police cannot exercise any powers relating to detention, search, arrest, or entry on to property which will or are likely to interfere with fundamental rights, such as the right to privacy, without specific statutory authority. Consequently, I fully accept that the police could not lawfully undertake the covert surveillance in Hamed.
I have frequently stressed the danger of articulating the law in absolute terms, and for that reason I have not argued that all powers possessed by the police in relation to detention, search, arrest, or entry on to property must necessarily stem from statute. In exceptional circumstances, authority may be found in the common law even though the action of the police is coercive and intrudes upon the rights and liberties of the subject. An example where the common law would apply in respect of an action for which there is no specific statutory authority is the act of a police officer stopping and searching a car reasonably suspected of making a getaway from a bank robbery. These were the facts in R v Jefferies [1994] 1 NZLR 290. To have held that the police officer in that case had no authority to stop and search the car in the reasonable belief it was fleeing from a bank robbery would have been nonsensical and, as I opined in my judgment, justification existed in the common law as it had developed (at 323-327). Other examples may be cited such as taking the necessary action to prevent or resolve a kidnapping, negotiating with hostage-takers holding innocent people hostage and, at the time, as pointed out by Hardie Boyes J in Jefferies (at 315), executing a road block. There is also considerable case law demonstrating how statutory powers relating to the police have been, and are still being, developed at common law. And there is a massive array of case law from the United States to the effect that, in exceptional cases, police action in carrying out warrantless searches is lawful. Hence, however appealing the proposition that the police should not be able to exercise any powers relating to detention, search, arrest, or entry on to property, the rule cannot be stated in absolute terms if the present and established law is to be accommodated.
Although the reality is that the police are exercising powers derived from the common law every day of the week, the proposition attracts criticism that the law is too uncertain. Undoubtedly, there is some validity to this criticism. It is equally true that it would be preferable for the powers of the police to be reduced to statute. But the uncertainty attaching to the law will not disappear as the courts strive to give the statutory provisions a sensible interpretation in the myriad of different factual situations which will arise. Indeed, because of the variety of factual situations which will inevitably occur, and which generally cannot be foreseen, the legislature is likely to enact a general fall back provision to the effect that the police may do all such things as are necessary to “keep the peace and prevent offences against the peace”. Uncertainty as to the scope of such a provision will be as great if not greater than any uncertainty attaching to the common law at present.
(Incidentally, and I make this point in brackets because I never agreed with Sir Robin Cooke’s view that the power to stop and search the get-a-way car in Jefferies was conferred by the constable’s appointment under the Police Act 1958 (at 298). But the distinguished President’s view is not as odd as the Chief Justice appears to suggest. Constables initially obtained their powers by virtue of their appointment as constables and Sir Robin was clearly looking for a basis on which to make a similar implication.)
The Chief Justice also held that an unlawful search is necessarily an unreasonable search. I believe that the view of the majority in Jefferies to the opposite effect is correct. Tipping J was not amiss in describing the contrary view as “absolutist” (at [226]). The learned Judge based his argument on the wording of s 21 of the New Zealand Bill of Rights Act 1990 (at [226]). His reasoning is sound enough. The legislature has referred to “unreasonable” searches with the objective of protecting the privacy of the individual and made no mention of “unlawful” searches. Further, however, there is (1) an epistemological difference between unlawfulness and unreasonableness, (2) a core distinction between a “right” to have the police observe the law and the right to have one’s privacy protected from an unreasonable search, and (3) the nature of the essential value being protected by s 21. An example can make the point just as effectively. Take some everyday, run of the mill warrant that, if correctly issued, no one would or could possibly suggest was unreasonable. Posit a technical or procedural defect so that the warrant is unlawful. How can this immanently reasonable search suddenly become unreasonable for the purposes of s 21? How is the objective of protecting the privacy of the individual furthered by extending that protection to searches that are technically defective?
The other aspect of the decision of which I tend to be critical is that Shaheed [2002] 2 NZLR 377, now embodied in s 30 of the Evidence Act 2006, has been undermined. Shaheed was a valuable development in the criminal law. The markedly different versions of the police’s behaviour in Hamed; wholly bad (short of bad faith) in the one case and unlawful but an understandable error in the other, is disturbing. So, too, there are four different approaches as to how judges should carry out the balancing exercise in s 30 on facts such as those in Hamed. How is a first instance judge to carry out the balancing exercise now? What example does Hamed set? It seems to me that judges really have no option but to err on the side of exclusion, especially as the most senior Judge in the land has equated unlawfulness with unreasonableness.
Now that the balancing exercise in s 30, albeit in language borrowed from Shaheed, has the rigidity of a statutory provision, the phrase, “the need for an effective and credible system of justice”, has had to be defined to include both respect for the rule of law as well as the community’s interest in seeing guilty people apprehended and convicted (at [60]-[62] per Elias CJ, [187]-[189] per Blanchard J, [230] per Tipping J, and [258] per McGrath J). I agree that the phrase is not capable of any other interpretation, but it has resulted in the true balancing exercise being distorted. I suspect that, without the rigidity of a codification of the law, the majority would have found a way to refine Shaheed and have adjusted the criteria so that the community’s interest in the apprehension and conviction of the guilty would not have been able to be so easily discounted by those minded to do so.
The main points I have made may be summarized as follows:
1. The Chief Justice’s opinion that the police have no powers other than powers conferred by statute is in error.
2. The third source exists but it does not extend to cover the coercive powers of the police which interfere with the basic rights of citizens.
3. Coercive police powers may be authorized by statute or, in limited cases, by the common law.
4. Having regard to the extensive statutory regulation of police powers of search and entry, and the extent of the interference with basic rights, especially privacy, it would be incongruous to hold that authority for the police to carry out covert surveillance is authorized by the common law.
5. Whereas the third source provides authority for the police to do anything that is not prohibited by positive law, the common law provides positive authority for identifiable, but limited, police action. It is able to develop to meet changing needs and expectations.
6. The police are in the best position to identify the statutory powers the police require. The third source permitting the police to do anything that is not prohibited by positive law removes the motivation for the police to do so.
7. Originally the police gained their status from their appointment as constables and their powers derived from that status. Legislatures have not displaced, or entirely displaced, this common law basis for police powers.
8. Although the general rule must be that the police cannot exercise any powers relating to detention, search, arrest or entry on to property without statutory authority, the rule cannot be stated in absolute terms if the limited circumstances recognised in the common law of the kind referred to in the text are to be accommodated.
9. The Chief Justice’s opinion that an unlawful search is necessarily an unreasonable search is unsustainable. Unlawfulness of itself, possibly no more than a technical or procedural defect, cannot be equated with unreasonableness.
10. The judgments in Hamed have undermined Shaheed (s 30) and made it difficult for judges at first instance to sensibly carry out the required balancing exercise.