Bill of Rights Flashcards
State S21.
Everyone has the right to be free from unreasonable Search and Seizure whether the person, property or correspondence
S22:
Everyone has the right not to be arbitrarily arrested or detained
What are the rights of a person arrested S23? (7)
1: Informed at time of arrest reason for it.
2: Right to consult and instruct a lawyer
3: Right to have arrest challenged by Habeus Corpus
4: Be charged promptly or released
5: If not bailed, then right to appear ASAP
6: Refrain from making a statement
7: Treated with dignity.
S24 BORA A person arrested and a person charged have different rights. What additional rights does a person charged have? (7)
informed of the nature of the charge
Right to bail unless just cause for detention
Consult and instruct lawyer
Adequate time to prepare a defence
Right to trial by jury if offence over 2yrs prison
Right to legal aid without cost
Right to interpreter
There are four key/most important rules for police associated with the NZ Bill Of Rights Act, what are they?
1: You may ask any questions but you must not suggest it is compulsory to answer.
2: If you have sufficient to charge, you must caution.
3: You must caution on arrest regardless of whether you have cautioned already
4: There is no power of detention for questioning.
What are the minimum standards of criminal procedure of a person charged S25? (9)
Fair and public trial Tried without delay Presumption of innocence Not to confess or be called to stand To be present and present a defence To examine witnesses Right to lesser penalty (if changed meantime) Right to appeal Right of child to be dealt with in manner consistent with age.
What is a search?
A conscious intrusion by the state into an individuals reasonable expectation of privacy
Not a mere observation
What is “Seizure”
Removing something from the possession of someone else. An item generated by a S&S power such as a photograph is not a seizure.
What makes a search unreasonable?
Circumstances giving rise to the search (ie strip search in public)
Manner of search.
A search undertaken in good faith using the incorrect search power is unlawful or unreasonable?
Unlawful - but not unreasonable
A strip search in public is unreasonable. What sections of BoR does it breach?
S9 - Cruel and degrading
S21 - Not to be subject to unreasonable search and seizure
If a search is deemed unreasonable, what is the usual remedy?
Exclusion of evidence S30 Evidence Act
Give four examples of arrest or detention:
Handcuffed
Formally arrested
Locked in a room
Placed in a patrol car against their will
Provide four examples that wouldn’t be deemed to be a search (4)
- using torch to observe item secreted inside a headlight
- asking to hold up bike to view serial number
- asking to hold hands out for inspection
- voluntary request to power company for data
An unlawful search because of a minor irregularity may, depending on the circumstances, not be unreasonable. When would a breach because of a minor technicality not be held to be reasonable
if Police realised the error before the search or seizure was undertaken.
What is an arrest per the Crimes Act
A communicated intention by police to hold person under lawful authority.
When will someone be regarded as being ‘detained’ (3)
What must be done if either of these occasions occur
- physical deprivation of someone’s liberty
- statutory restraints on a persons movement
- reasonably held belief, by police conduct, they were not free to go
B. provide them with rights per s23 BORA CAUTION
When will an arrest be Arbitrary (3)
- If it is capricious (impulsive/unpredictable) or without reasonable cause
- Was unlawful or proper procedures not followed
- lasts longer than necessary or longer than needed to bring before court
Can you stop a vehicle to undertake general enquiries
no could be classed as arbitrary detention.
Unless under transport act, or s9 S&S (good cause to suspect someone unlawfully at large or committed imprisonable offences)
When should a Caution be given (Adult & CYP)
- Detention, arrest, or to question someone where there is sufficient evidence to charge.
- CYP when detained, arrested according s215 CYP act, before questioning where RGTS committing offence or before asking questions intended to obtain an admission of an offence.
What must be explained if wish to question a person about the statements of others or other evidence
The substance of the statements and nature of the evidence must fairly be explained.
In some cases short delay means no detention, (or right to consult and instruct lawyer) per s23 give some examples of these? (4)
- Motorist stopped for BST
- Motorist stopped and requested to provide details per land transport legislation
- Motorist taken to hospital after crash and DR requested to obtain blood sample for alcohol testing
- Search warrant and reasonable directions given to persons if reasonable grounds to believe will obstruct the search (ie to leave house or remain in a room)
S23(5) requires treatment with humanity and respect. provide examples of breaching this (6)
- excessive force used on detainee
- Failure to provide medical treatment
- unlawful restraint to prevent self harm
- failure to comply with policies that provide for minimum entitlements such as food clothing, exercise time.
- unnecessary strip searching
- failure to protect detainee from other detainees.
What is a remedy for breach of s23(5)
compensation. O/C spray - $30,000. minimum entitlements in prison $35,000. failure to provide sanitary products $4,000
