Police questioning

Abstract

Police questioning is perhaps the most basic, yet effective investigative tool. It is therefore surprising that, given the extent of statutory controls that have been imposed upon police, this has remained largely untouched by legislation. As a result, an often obscure and uncertain mix of common law and statute has been relied on to shape the questioning process. A key area of uncertainty has been the ability of police to involve the suspect in the investigation of an offence, including questioning the person, after an arrest has been made. In addition, since the enactment of the Bill of Rights Act, the concepts of 'arbitrary detention' and 'informal arrest' have combined with a prima facie exclusion of evidence rule to amplify an already uncertain area of law. However, unlike some overseas experience, reform to police questioning laws in New Zealand is unlikely to be driven by concerns over systemic abuse by police. Rather, police questioning practices have tended, if anything, to respond to uncertainty by over-compensating in favour of suspect rights. Indeed, a combination of the Bill of Rights Act and the State funded duty solicitor scheme in police stations has already worked to help ensure against such abuse. While the situation may not be described as dire, a legislative response is nonetheless needed. The primary focus must be to reform the process of arrest, as this is where both the greatest uncertainty and consequently the greatest risk to individual liberty exists. Law reform needs to prescribe the relationship between arrest and questioning, and would also provide direction on the process of questioning before arrest. Although common law rules for exclusion of evidence would remain, compliance with a statutory code may go some way to ensuring that evidence was admissible. The essential aim of reform is to achieve a balance between the public interest in bringing offenders to justice, and the rights and liberties of those suspected or accused of an offence. Fundamental principles that underlie the investigative process should therefore be reflected in a questioning code, including both the social duty to assist police and the right of suspects not to be compelled to respond to police questioning. Balancing the underlying principles acknowledges that police questioning does not exist in a vacuum. A key benefit of a clearly accessible set of rules for police questioning is that, while these may not guarantee against unfairness by police, it is more likely that where unfairness does occur, both the police and the suspect will be aware of this.