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Policing (Storage of Youth Identifying Particulars) Amendment Bill (Consistent) (Section 21) [2011] NZBORARp 17 (6 May 2011)

Last Updated: 29 April 2019

Policing (Storage of Youth Identifying Particulars) Amendment Bill

6 May 2011 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

POLICING (STORAGE OF YOUTH IDENTIFYING PARTICULARS) AMENDMENT BILL

1. We have considered whether the Policing (Storage of Youth Identifying Particulars)

Amendment Bill (PCO 15181/1.9) (“the Bill”) is consistent with the New Zealand Bill of Rights Act 1990 (“Bill of Rights Act”). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee on Thursday 12 May 2011.

2. The purpose of the Bill is to amend the Policing Act 2008 (“the Act”) so that the Act indicates clearly when it authorises the storage, and requires the destruction, of youth identifying particulars. This will restore the Police’s ability (which was inadvertently removed by the Act) to store fingerprints and photographs of youths for whom there is a proven outcome in the Youth Court.
3. The Bill will replace s 34 of the Act with new ss 34 and 34A from the date the Act commenced, namely 1 October 2008.
4. New s 34(1) will provide that identifying particulars of a person obtained under ss 32 or 33 may be entered, recorded, and stored on a Police information recording system. Identifying particulars include a person’s name, address, date of birth, photographs or visual images, impressions of fingerprints, palm-prints, or footprints. However, new s 34(2) will require that photographs or visual images of a person, and impressions of a person’s fingerprints, palm-prints, or footprints be destroyed as soon as practicable after:
   

• a decision is made not to commence criminal prosecution proceedings against the person in respect of the offence for which the particulars were taken, or
• criminal prosecution proceedings that are commenced against the person in respect of the offence for which the particulars were taken are completed with an outcome that is not an outcome specified in new s 34A.
  
• The outcomes specified in new s 34A are that the person:
  
  • admits to an offence and completes a programme of diversion
  • is convicted of an offence
  • is proved before a Youth Court to have committed an offence and the Youth Court makes a specified order, or
  • is discharged under s 106 of the Sentencing Act 2002.
    

POSSIBLE INCONSISTENCY WITH SECTION 21 OF THE BILL OF RIGHTS ACT

Background

• In the advice we provided to the previous Attorney-General on the Policing Bill we considered the power (now contained in s 32 of the Act) that allows a constable to take the identifying particulars of

a person who is in the lawful custody of the Police if that person is detained for committing an offence.

• The Ministry considered the taking of identifying particulars to be prima facie inconsistent with protection from unreasonable search and seizure in s 21 of the Bill of Rights Act because of the lack of judicial warrant or judicial oversight combined with the wide definition of identifying particulars. The Ministry concluded that the power was justified in terms of s 5 of the Bill of Rights Act. The objective (to ensure the person lawfully detained is the same person appearing in Court) was considered significant and important and the power was rationally connected and proportionate to the objective.
  
• When considering the reasonableness of taking identifying particulars we were influenced by the circumstances in which identifying particulars could be entered, recorded, and stored on a Police information recording system before being destroyed.
  

Discussion

• We have considered whether restoring the Police’s ability under the Police Act 1958 (now repealed) to store fingerprints and photographs of youths for whom there is a proven outcome in the Youth Court now makes the power to take identifying particulars unreasonable.
  
• Section 21 of the Bill of Rights Act affirms the right of everyone to be secure against unreasonable search and seizure, whether of the person, property, correspondence or otherwise. Where actions do constitute a search or seizure, s 21 protects only against those searches or seizures that are

“unreasonable” in the circumstances.

• In our view, despite the clarifications being made by new ss 34 and 34A, the search and seizure powers in ss 32 or 33 are still reasonable. Photographs, visual images, fingerprints, palm-prints, and footprints obtained under ss 32 or 33 can only be retained where the person has been the subject of Court proceedings and the outcome is that a criminal offence is admitted to or proven against the person. Retention of this information will allow Police to link previous offending to any future offending. For example, fingerprints found at a crime scene could be linked to the fingerprints of a previous offender. Retaining other identifying particulars such as the person’s name and address will allow Police to determine if they have had previous relations with a person.
  

Conclusion

• We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.
  

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Policing (Storage of Youth Identifying Particulars) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.