Know your rights with the police
Your rights are not absolute. They are limited at best; at worst they don’t exist at all. You are in a better position if you know your rights, but don’t expect that the police will know your rights, or respect them, despite what they say to the contrary.
The Search and Surveillance Act (2012) is the primary law for issues relating to what cops can do with and without warrants. You can find this and the many other relevant laws mentioned in this book at http://www.legislation.govt.nz
This guide is a basic primer in your rights. It is not comprehensive and you should seek legal advice if you have specific questions about particular activities or actions you have taken or wish to take. There is a printable PDF at the bottom of this post of this should you want to make copies (please note that the printable version is intended to be assembled as an A6 size booklet. It requires double-sided printing, guillotining and stapling the booklets together in the correct order along with a cover).
Dealing with the police
There are several basic rules you should follow when interacting with the police:
• Do not argue with the police.
• Say as little as possible, which generally means say nothing other than your name if asked.
Anything you say can be used against you.
• Do not touch the officer.
• Do not complain or tell the officer you are going to file a complaint against him/her.
• Remember the officers’ badge(s) and patrol car(s)
numbers and write everything down as soon as you have an opportunity. Try to find witnesses and get their names and phone numbers.
• If you are injured, take photos as soon as you can.
If you do not obey the instructions of the police when they are trying to arrest you, even if you believe that you have done nothing wrong, you may be charged with additional crimes (e.g., resisting arrest or interfering with police), and you could be convicted of these other charges even if the other charges are dismissed. Interfering with a cop is
typically defined to include any act designed to impair an
officer’s ability to do his or her job, including the simple
refusal to obey a lawful order by an officer.
Filming (or photos) all activities, incidents and events, including arrests, is extremely important to avoid disputes about who or how injuries or property damage occurred.
Your right to remain silent
Unless you have been detained or arrested by police, are suspected of having drugs, or are in a motor vehicle, you do NOT have to tell the police ANYTHING about you – not your name, address, cellphone number, where you are going, whether or not you know who someone else is, nothing! The cops like to make you feel like you have to give them this information. You do not.
If you are DETAINED or ARRESTED, you must give your NAME, ADDRESS, and DATE OF BIRTH. (Policing Act Section 32). You do not have to give them anything else (like your cellphone number, land line or email address).
The cops are very likely to question you in relation to the crime they are holding you for. They will sometimes play ‘good cop’ promising that they just want to ‘sort things out’ or that they need to ‘put facts to you’.
It is tempting to want to challenge or correct the police version of events relating to your actions. Don’t fall for it. Keep your mouth shut. It is very important to resist this and say nothing. The cops will also try to engage you in small talk in order to get you talking about other things. Don’t say anything more than your name, address and date of birth. Do not make any statements to the police. If you need to talk, talk to your lawyer.
The cops also run through a few question when they are processing you (taking your picture and prints, getting your height etc) so they know you aren’t suicidal – like ‘Do you feel sad, depressed or extremely anxious?’. These questions are unrelated to the matter (crime) that you are being arrested for. You do not have to answer any of these questions, but doing so will not generally negatively impact your legal position.
Your right to remain silent in a car
As a DRIVER you must give these same details as someone being detained or arrested: name, address and date of birth. (Land Transport Act, Sec 114)
As a PASSENGER you only have to give your details if the police reasonably suspect that you are on the run from police custody or have committed an offence (Search&Surveillance Act, sec 10), OR if the cop is only there to enforce the road rules (Land Transport Act, sec 113).
If in doubt, ask the officer what offence is believed to have been committed (or what road rules they are enforcing) before giving your details.
At the time you are detained or arrested for any reason, you:
• Have the right to remain silent and refrain from making any statement and be informed of that right AND
• Should be told the reason for your arrest AND
• Should have the right to consult and instruct a lawyer without delay and to be informed of that right; AND
• Should have the right to have the validity of the arrest or detention determined without delay and to be released if the arrest or detention is not lawful.
•Can be searched, and the police can (and will!) use ‘reasonable force’ do this. You must be searched by a person of the same sex.
Be clear & assertive about your rights when dealing with the police.
When you are being arrested, police will search you and your belongings including any bags. They can demand to know your contact details: name, address & date of birth. Just remember that your ‘contact details’ are only as extensive as you give, e.g. don’t willingly pass on your home phone, cellphone number or email address. They may also require you to provide a DNA sample by way of a saliva swab. The cops are only authorised to do this if they are detaining you for committing an ‘imprisonable offence’ – most offences are ‘imprisonable’ but there are exceptions, such as offensive behaviour, obstructing a public way, and tagging/graffiti-ing. If you are being detained for one of those offences, refuse to give your DNA! (Criminal Investigations (Bodily Samples) Amendment Act 2003 Sec 24J).
Search and seizure
Police cannot search you or your belongings except in extraordinary circumstances unless you consent to it, are being placed under arrest or by warrant.
Searches without a warrant
You, your house, office, bags and your car can be searched without a warrant if police suspect you of having drugs (Search&Surveillance Act Sec 20) or firearms (section 18) and they must tell you if this is the case.
Police can enter any premise in these circumstances:
• to arrest you because they reasonably suspect* you of having committed a crime
• they have found you committing an offence and are freshly pursuing you
• they suspect an offence likely to cause
immediate and serious injury to any person OR property is about to be committed
Even if police come into a premise to arrest you, they have
no powers to conduct a general search of the premises
without a warrant. Ask them for it!
Warrants must be signed, dated, have the correct address and state what they are looking for.
If they don’t have one, tell them NO!
*This term is open to interpretation, and often up to a judge. Police will invent ‘facts’ or use information that they find after conducting the search as the grounds for having formed a reasonable suspicion prior to the search. Note that reasonable suspicion is a lower threashold than reasonable belief.
Being processed and being bailed
If you are arrested, ask to speak to a lawyer at the first available opportunity. Do not tell the police anything other than your name, date of birth and address without a lawyer. Within a reasonable time after your arrest, you have the right to make a local phone call. Hopefully, you will have planned in advance to call a particular lawyer, but if not, the police have a list of lawyers who you can call. These are lawyers who do regular criminal court appearances – some are better than others.
You do not have to make a statement under any circumstances.
You will generally be fingerprinted, handprinted, photographed and measured for height. You will also be asked a series of questions about your state of mind (see section on ‘Right to remain silent’). Following your arrest and processing by police, you will (generally) be bailed or released ‘at large’ (that means without any bail conditions) and given a date to report to court. Depending on the charge(s) or who you are, the police may try to impose specific conditions on you. For example, the police have been known to impose curfews, requirements to report to police on a regular basis (daily, weekly, etc), non-association orders (in relation to other people, particularly other activists you might have been arrested with) and restrictions against going to particular places. The most common bail condition is for ‘residential address,’ this is simply your regular home address. It is not a requirement to be there at all times, only that it is where you live.
Some common charges used against political activists:
• Breach of the peace – arrest, detained, no charge, released within a relatively short period of time (Crimes Act Sec 42). This is used to get you out of the way when you haven’t been doing anything wrong at all, they just don’t want you there.
• Trespassing – police MUST be acting with the consent of the lawful occupier of the place, and they must WARN you first (Trespass Act Sec 3 & 4). Police are legally allowed to demand your name and contact address for the purposes of issuing you a trespass notice (Trespass Act Sec 9)
• Disorderly behaviour – a very common charge but crucial to this charge is that your actions must be likely in the circumstances to cause violence against persons (including yourself) or property (Summary Offences Act Sec 3)
• Offensive behaviour – this is the less serious equivalent of disorderly behaviour. It means behaviour which is ‘seriously disruptive of public order’ (Summary Offences Act Sec 4)
• Being found on property, etc, without reasonable excuse (Summary Offences Act Section 29) this includes inside buildings or yards. It would not apply to going into protest at a conference, unless the police could prove that you had an intention to commit other crimes.
• Resisting Arrest/Obstructing Police (Summary Offences Act Section 23) – Police often use this against activist who are trying to stop the police acting unlawfully (e.g. if the police are harassing someone). But remember, it is a defence if you don’t believe that the cop was acting ‘in the execution of his duty’.
• Assaulting a police officer (Summary Offences Act Section 10) Police will lay this charge for the slightest push against them. See ‘Police are brutal thugs’ on the ‘Unfortunate realities’ page
• Wilful damage: (Summary Offences Act Section 11) Under this charge, your intention does not really matter. If you damaged something, regardless of whether you meant to or not, you could be charged. This charge covers any intentional act which damages property or impairs its function, even temporarily
• Obstructing public way (Summary Offences Act Sec 22): Used by police to clear off protests. Just be sure to make room for other users of public space (eg. footpaths, etc).
These charges are all ‘summary offences’ which means that if you are arrested, it would be extremely unlikely that you would go to jail.
You would be tried by a judge, not a jury, and if you were convicted, you might get a fine and/or community service work to do. In some cases, even if you are found guilty it is possible to get a ‘discharged without conviction’ which occurs when the judge deems that a registering a conviction against you may disproportionately affect your future prospects for work or school. The converse ‘convicted and discharged’ means that the only punishment against you is a conviction registered on your criminal record.
The Anadarko Amendement
In May 2013, the government passed an amendment to the Crown Minerals Act that specifically criminalises protests and actions against off-shore oil and gas drilling. (New section 55, inserting sections 101(a)-101(c) into main act)
What the act says:
- The government can declare exclusion zones around the ships or structures doing surveying or drilling, extending up to 500 metres out from the ships/structures.
2.You can be arrested and charged for intentionally interfering with any activity of the ship/structure irrespective of whether or not you touch the ship/structure
- You can also be arrested and charged for simply entering the zone where off-shore oil exploration is happening IF you
are in charge of a boat that goes into the zone OR if you swim into the zone. This particular offence is not ‘imprisonable’, so refuse to give your DNA if you are arrested for it.
Because this law is relatively new, there are few precedents (previous cases) about how it has been dealt with by the courts. The law was originally passed in order to stifle actions where people got into the water around surveying vessels to interrupt the survey. In 2018, two activists who had pleaded guilty to intentionally interfering with a surveying ship were discharged without conviction.
It is important to remember that what is legal and what is just are two very different, and often contradictory things!