National admits restricting right to silence in child murder cases may breach Bill of Rights Act

National is promising to take away the right to silence in child murder cases if re-elected.

The party admits the policy may breach the Bill of Rights Act, but says public sentiment towards bringing accountability and justice to unresolved cases outweighs the potential harms arising from it.

While victims’ rights advocacy group Sensible Sentencing Trust (SST) has welcomed the proposal, spokeswoman Louise Parsons said they will “hold the Government’s feet to the fire on this issue to make sure any law of this nature is meaningful and robust, not just window-dressing”.

Paul Goldsmith, National’s justice spokesperson, said the party would amend the Crimes Act to make it an offence for a person to withhold information from police when they’ve been present at a location where a child aged 12 and under has been killed.

Under the Bill of Rights Act, individuals questioned by police have the right to refrain from speaking or making any statement, as well as be informed of that right.

Goldsmith said National would work with legal experts to make an exemption to the rule “in exceptional circumstances” involving the death of a child, applying to any adults present at the time of – or leading up to – their death.

National's justice spokesperson Paul Goldsmith says the offence will exempt adults present around the death of a child aged 12 or under from their right to silence. Photo / Getty Images

The offence would carry a maximum sentence of 10 years in prison.

“New Zealanders will remember numerous high-profile examples throughout our history where children have been brutally murdered, and police have been unable to identify the attacker because people have chosen not to share critical information with them,” Goldsmith said.

“The right to remain silent is a fundamental principle, however, it should not be absolute when a child has lost their life and, for example, there are only three people in the house, but no one is talking.”

Such cases include the deaths of Chris and Cru Kahui, 84-day-old twin brothers who died just hours apart in 2006 after being violently assaulted at their Māngere home.

Their father, Chris Kahui, was charged with murder yet acquitted in a trial by jury, and to date, no person has been charged or convicted over the boys’ deaths.

Meanwhile, police have previously said the investigation into the death of Lower Hutt child Baby Ru has been hindered by the absence of “full, truthful” accounts from the three adults present at the house when he suffered fatal injuries on his 2nd birthday, leaving the case unresolved years later.

Asked whether National has prepared for any Bill of Rights Act breaches that may stem from the policy, Goldsmith said he was “sure there will be something that the Attorney General will look at closely”.

“All those rights sometimes will be breached if there’s a real good reason to do so, and we believe holding to account and bringing justice for children who have been killed in our society is reason enough.

“But yeah, I expect a big debate about it.”

National’s police spokesman Mark Mitchell said voters’ concerns over exploitation of the right have been raised in several public meetings on the campaign trail.

“They do not understand how we can have children killed in this country and adults, who are meant to be responsible for keeping them safe, hide behind the right to silence,” Mitchell said.

“They can maintain their right to silence, but we’re saying there’s going to be consequences for that.”

Criminal defence lawyer Anoushka Bloem told the Herald the policy may look good on paper but remained quite vague, describing it as a “quick fix” and “knee-jerk reaction” to a complex, case-specific issue.

“There are so many other dynamics at play [in these cases] that need to be carefully considered,” Bloem said.

“And the way to fix it isn’t to change fundamental parts of the justice system.”

Bloem said the rule of law was pivotal in democratic countries, so there will be concerns within the legal profession over any restrictions to individuals’ rights, describing it as a “slippery slope”.

She said achieving justice was “not as simple” as forcing someone to either talk or face criminal charges, pointing to cases like Terri Friesen’s wrongful conviction and imprisonment for the manslaughter of her 7-week-old baby as an example of someone being swayed to make false statements under duress.

Parsons said STT endorsed the proposal, arguing the current law encourages a “culture of silence” that allows family members to protect offenders.

“Refusals to speak with police about the circumstances of the case close to the time of the incident too often frustrates the investigation and identification of those responsible,” she said.

“Justice is then denied.”

Still, Parsons said that “with all policy of this nature, the devil is in the detail”, and STT would push to ensure the policy would have a tangible effect on addressing violence against children.

“We recognise the right to silence as an extremely important civil right and should not be violated other than in exceptional circumstances. The killing of a child is one of those exceptional circumstances.”