Monday, September 26, 2011

What the ???? is going on with ACT?

First the legalisation of marihuana...

That has resulted in Cactus Kate thrashing in the undergrowth for something good to say about anything.

Followed by Boscowen fleeing the party...

Implosion time. Will anyone really notice?

Oh, and the teaser on the Herald this morning -

"Vote Brash
Get hash"


Sunday, September 25, 2011

Idle Sunday Observation -

One of the most recent links offered by ALD is to the New Humanist, a correspondant by the name of Johnathon Re'e (there is supposed to be an accent on the first e). He is offering yet another repatitive and boring rationalisation on the relationship between atheists, atheism, and the Christian religion.

Why is it that 99% of the modern atheists (I can not in truth say 100%) follow the well-trodden path of single religious atheism. As he does this, Ree has pointed out the inconsistency of his own argument. His observation that Christians were considered atheists by the Romans of the time follows the single religion path to its source.

When will "atheism" and its promoters be able to take the truth of their own belief to its foundation? The "well-trodden path" (is it the narrow path to heaven of the Christians?) should be the broad highway that excludes all theism. Does Ree's rejection of Christianity reject Bhuddist or Hindu beliefs as well?

Aldous Huxley was brave enough to analyse the common ground between all the major religions (his "Perrennial Philosophy") rather than to express a full atheism. That book should be a required reading for anyone who leaps to print on the subject of atheism. Not only should it be read, it should also be understood and appreciated as one expression of the foundation of all religious belief.

I profess to have no religion. That to me is atheism. I do not need to support or even debate what it means. That it is my belief makes it as valid in every sense as Catholicism, Jaine, Sufism, Bhuddism, Islam, or Southern Baptist.

In no way does that make me amoral. The counter that atheism is the same as amorality does not cut the mustard. I live by the morality of my up-bringing, of the society in which I live. That does not in any way counter my belief, counter the fact that I have no belief in any religion.

Tuesday, September 20, 2011

Police powers and the law

It is around about now that the truth of what was behind the cancellation of charges against the Urewera 17 is coming to light.

That truth lies in a piece of legislation currently before the House, and being pushed through under urgency.

The legislation has the effect of allowing Police powers they as the law had interpreted them prior to a couple weeks ago; the date of the Supreme Court’s decision that the basis of much of the evidence against the Urewera 17 had been illegally obtained.

My understanding of the general position is this –

First, the Police have been obtaining evidence using covert (hidden) means including hidden video cameras and sound equipment (as distinct from the traditional wire-tap).

Second, the use or even the existence of these methods was not envisaged at the time the present legislation was enacted.

So the interpretation applied by the Police, supported by a number of criminal cases already concluded and appealed (two specific ones have been mentioned), has been that if it is not specifically prohibited then it is legal.

The Supreme Court case – the elephant in the bed – has turned that interpretation on its head. If it is not specifically authorised then it is illegal.

That really does follow White’s (from “The Once and Future King”) ants nest sign changing from “What is not Forbidden is Compulsory” to “What is not Compulsory is Forbidden”.

I have had one instance where my office was used by police for surveillance of a neighbour in some considerable secrecy. That was set up in accordance with a Court Order requiring that the use be provided and specifying the nature of the evidence to be obtained under the Warrant. Seems to me that is exactly the same situation as was followed in the case of the Urewera 17 except for one small but essential fact. In the latter case the consent of the landowner from where the surveillance took place was not sought. Why? For the very simple reason that they were the same people against whom the evidence was being obtained.

Now I can sympathise with the Police in the difficulties this may have caused in their process against the Urewera 17. That sympathy goes no way toward what I see as the centre of my personal objections to what happened.

First up, the police should be required to prove that there is substantial and legally obtained evidence that a crime has been or may be committed. That need not take place before open Court but it does need the Court’s hearing and consent. I do not believe that changes anything that already exists.

Second up, and irrespective of any charges that may subsequently be laid, that process must be revealed to the person(s) being investigated as part of the evidence in Court for resulting charges, or once the police have completed their investigation, or at the latest within a specified time period; I would suggest four years as a long maximum.

Third up, the process is required, essential, to prevent police indulging themselves in “fishing” for evidence against individuals without valid cause.

It comes down to this –

Whatever legislation the Government wishes to implement, governing the rights of Police to investigate and obtain evidence, must at all times be and remain subject to the New Zealand Bill of Rights Act 1990.

This dates back as far as June 2002 –

write further to my letter of 23 May 2002 in which I made a submission on Part
II of the discussion paper. This supplementary submission touches upon Parts III
and IV.

While I understand that [the Law Commission is] concentrating on search upon arrest I highlight two related issues in this context:· the merit from a privacy
perspective in delaying more intensive searches until the suspect in the
controlled environment of the police station (and I believe the philosophy of
[the United Kingdom Police and Criminal Evidence Act 1985] PACE s.32 is
consistent with this); and· if Police Act 1958 s.57A is to be amended, through
repeal of s.57A(5), it may also be timely to review the provision in total to
see whether it needs to be modernised to better protect peoples' rights,
including expectations of privacy, consistent with reasonable law enforcement

A general warrant?

In paras 30 and 31 [of the Preliminary Paper 50] the case for a general warrant for investigative techniques is raised. One example is given of a real New Zealand case involving 6 months of Police video surveillance into a person's home through a kitchen window. The merit of a warrant process authorising such intrusive surveillance by warrant for the Police is that the risk of the evidence gathered being declared inadmissible is minimised. The merit from a civil rights and privacy perspective is that the Police must initially justify their case to an independent person and, if the surveillance continues for an extended time, the Police will have to return to the judicial officer to maintain the justification. Conditions can be imposed to minimise the impact upon the suspect and other persons. The Commissioner has
formally recommended that consideration should be given to establishing a judicial warrant process in relation to the use of covert video surveillance in the investigation of offences (Privacy Commissioner, Necessary and Desirable: Privacy Act 1993 Review, 1998, para 2.6 and recommendation 22).

Accordingly, the Privacy Commissioner welcomes exploration of the idea.

However, wherever possible the legislature should expressly consider the means of investigation and craft statutory safeguards warranted by the nature of the technology and the intrusiveness of its application. It has done this in the past in relation to search warrants, interception warrants, call data warrants and computer access authorisations. In such crafted legislation the judicial warrant forms part of a
wider scheme of safeguards rather than the sole protection (e.g. in relation to offence provisions, absolute prohibitions on certain practices with standard conditions on certain others, information retention and destruction, record keeping, notification, audit, compensation, public reporting etc).

That analysis is a good and fair analysis of just how I have always seen the handling of the investigation, charging, and judicial fallout from the Urewera 17 case.

He concludes -

Accordingly, any proposal to claw back the protections in s.21 by omitting reference to unreasonable search, and placing the emphasis only on unlawful search, will make the NZBORA even less effective as a partial implementation of the universal human right of privacy. Tinkering with the Bill of Rights is rare.

Perhaps doing so offers the opportunity to consider including a new article modelled upon Article 17.

It seems clear from Scott Optican's review of the case law ("What is a 'search' under s.21 of the New Zealand Bill of Rights Act 1990? An analysis, critique and tripartite approach" 2001 NZ Law Review 239) that a central role of judges in the cases under s.21 is to adequately protect privacy. Investigative conduct which can breach reasonable expectations of privacy is frequently likely to be raised by surveillance activities involving no trespass of the traditional kind. If reasonable expectations of privacy are to be protected at all in this area it is undesirable to simply look at the
question of lawfulness in terms of trespass. To limit the section the manner canvassed in the paper would presumably diminish legal protection of privacy.

That would not be supported by the Privacy Commissioner.

Finally, the discussion paper focuses solely upon the use of s.21 in court proceedings,
particularly in challenging admissibility of evidence. For example, para 37 suggests that the reference to unreasonableness ceased to be useful when the Bill of Rights was rewritten so that the courts could not strike down statutes.

However, the NZBORA is also used as a standard in guiding officials who propose, develop and scrutinise new laws including those laws that empower officials to carry
out searches and surveillance. If the test were simply to be lawfulness the mere enacting of a statute conferring such powers would essentially end the matter. It is also useful that there be scrutiny of the reasonableness of such laws. Although such scrutiny could be undertaken in the absence of the NZBORA, the fact is that one of the NZBORA's major current roles is as a standard for pre-legislative scrutiny of bills.

For me, the difference lies between on one hand the police using private cctv footage to obtain evidence in investigating a crime committed, and on the other the police using the same cctv footage to track and monitor individuals who may not have been involved in the commission of any crime.

Sunday, September 18, 2011

On freedom and having free will...

I picked this one up through the new old mates who are running ALD these days.

The experiment helped to change John-Dylan Haynes's outlook on life. In 2007, Haynes, a neuroscientist at the Bernstein Center for Computational Neuroscience in Berlin, put people into a brain scanner in which a display screen flashed a succession of random letters1. He told them to press a button with either their right or left index fingers whenever they felt the urge, and to remember the letter that was showing on the screen when they made the decision. The experiment used functional magnetic resonance imaging (fMRI) to reveal brain activity in real time as the volunteers chose to use their right or left hands. The results were quite a surprise.

"The first thought we had was 'we have to check if this is real'," says Haynes. "We came up with more sanity checks than I've ever seen in any other study before."

That is the intro. The next bit gets into realms of philosophy whence angels might fear to tread...
The conscious decision to push the button was made about a second before the actual act, but the team discovered that a pattern of brain activity seemed to predict that decision by as many as seven seconds. Long before the subjects were even aware of making a choice, it seems, their brains had already decided.

As humans, we like to think that our decisions are under our conscious control — that we have free will. Philosophers have debated that concept for centuries, and now Haynes and other experimental neuroscientists are raising a new challenge. They argue that consciousness of a decision may be a mere biochemical afterthought, with no influence whatsoever on a person's actions. According to this logic, they say, free will is an illusion. "We feel we choose, but we don't," says Patrick Haggard, a neuroscientist at University College London.

Now I think that is quite an interesting idea.

If only because I can just hear les religeaux piping God hot and strong into the mix.

Further on...
The practical effects of demolishing free will are hard to predict. Biological determinism doesn't hold up as a defence in law. Legal scholars aren't ready to ditch the principle of personal responsibility. "The law has to be based on the idea that people are responsible for their actions, except in exceptional circumstances," says Nicholas Mackintosh, director of a project on neuroscience and the law run by the Royal Society in London.

Owen Jones, a law professor at Vanderbilt University in Nashville, Tennessee, who directs a similar project funded by the MacArthur Foundation in Chicago, Illinois, suggests that the research could help to identify an individual's level of responsibility. "What we are interested in is how neuroscience can give us a more granulated view of how people vary in their ability to control their behaviour," says Jones. That could affect the severity of a sentence, for example.

(Just wait for Weatherstone to get hold of that idea!).

Sorry lads and lasses. I think it is no more than a measure of how thick the human brain is... the unconcious says "press", and it takes the concious 7 seconds (or 0.7 seconds depending on measure and a lot of other variables) to decipher the message. The concious says "I am going to press in five, four, three..." and the "press" neurones fire up, "two, one, fire!".

Very similar to a launch as Cape Canaveral.

Friday, September 09, 2011

Idle observation -

This comes after dropping in at TF's place and leaving a couple of pertinent (if unwanted) comments.

The post relates to the inability of red-light cameras to give evidence in Court.

I can not help but wonder how that reconciles with him happily marching into a booth in November next year and happily pulling his vote for the Tea Party on a machine.

Tuesday, September 06, 2011

As the sun sinks slowly in the west...

... one of the most shameful episodes in NZ criminal justice is quietly coming to an end.

I have no connection with those charged, other than the fact that for two years I lived in a similar community where my father was headmaster at the local school. I was 8 at the time.

That it has taken so long for the Justice system to pull its thumb from its collective arsehole is beyond belief. That it has occurred only 4 months before a General Election only adds to the solid stench of political agendae and unsettled scores.

Firearms charges against most of those arrested in the police raids on alleged military training camps in the Ureweras have been dropped.

But four of the accused, including Tame Iti, will still stand trial on charges of participating in an organised crime group and firearms charges.

The Supreme Court has ruled certain evidence inadmissable at the so-called "terror raid" trial of next year which was set to last for three months.

The groundbreaking decision over-ruled previous judgments from the High Court and Court of Appeal over whether the Crown could use evidence gathered in the covert police operation before the arrests in October 2007.

The Crown has now dropped the Operation Eight prosecution against 13 of the 17 accused, according to a statement just released by the Auckland Crown Solicitor, Simon Moore SC.

Mr Moore said the judgment of the Supreme Court is subject to suppression orders and cannot be reported.

The most immediate question has to be "Why" can this latest step not be reported?
The effect of the delay would be that those accused facing Arms Act charges alone would not be tried for a period of four and a half years from the date of their arrest," said Mr Moore.

"Further, they were remanded in custody for a period of time following their arrest, and they have been on restrictive bail conditions through much of the time since their release.

"Taking these matters into account together with findings made by the Supreme Court about the seriousness of their offending, it is the Crown decision that the continuation of proceedings would not be in the public interest."

You bet it would not, nor will it be, simply because the whole process from the day the AOS stepped onto their bus and drove to Ruatoki has been nothing less than a monumental fuck-up. I will say it. It is so bad that I can not believe for a moment that it was solely the responsibility of the Police. There has to have been another hand. There is only one that could move things in the mysterious way this has progressed.


Which raises the next question. Why has the Jonkey been so slow in making it known to the Police and the Justice system that enough is more than enough.

The secrecy has to end. It might be justified to the time that the last remaining charges are settled.

Then the book must be opened.