Hard News by Russell Brown

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Hard News: Drunk Town

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  • Matthew Poole, in reply to Keir Leslie,

    I would imagine that a blanket policy of locking up everyone caught fighting would either have to develop so many exceptions as to not be a blanket policy, or would in fact be the introduction of arbitrary arrest into New Zealand law

    Woah. We've turned an automatic night in the cells into the arbitrary arrest that you insist - in the face of evidence such as the student protests at the start of the month - doesn't exist in this country. Pray tell, what else is locking up 30-some people for several hours before releasing them with no charge if it's not arbitrary arrest?

    The pit from whence crawl… • Since Mar 2007 • 3925 posts Report Reply

  • Sacha, in reply to Keir Leslie,

    __We’ve just established that the police will arrest someone if they wish to, NZBORA or no__

    No actually we haven't established that the NZ police regularly engage in arbitrary arrests.

    I doubt the words 'will' and 'regularly' mean the same thing.

    Ak • Since May 2008 • 16838 posts Report Reply

  • Keir Leslie,

    I never said if it was or was not arbitrary arrest. It would be hugely presumptuous to pronounce on the matter on the basis of the facts I have, which are pretty limited. If it is an arbitrary arrest, there are remedies and in fact student protesters have tended to do pretty well out of the BORA — Beggs is the most obvious case here. I have always maintained there are difficulties enforcing those rights, and that is one reason that any attempt to whittle down the prohibition on arbitrary arrest is so repugnant.

    On the other hand an automatic night in the cells would certainly be an arbitrary arrest. AG v Hewitt ([2000] 2 NZLR 110 by the way, sorry) (which develops lines from Practical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 and Whithair v AG [1996] 2 NZLR 45) is pretty clear when Justices Randerson and Neazor say:

    [55] For present purposes, we are satisfied that a failure to consider the discretion to arrest as a result of blind adherence to policy or a fixed determination to arrest come what may, is not only unlawful but must also be regarded as arbitrary for the purposes of s 22 of the NZBORA.

    Meanwhile van Alphen v the Netherlands (in the UNHRC) suggests that

    5.8 The drafting history of article ’9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.

    Anyway, this is a total sideshow — clearly a fixed rule of jailing etc would violate the prohibition on arbitrary arrest. That is a pretty settled rule of law. See here for quite a good guide to the matter.

    Doesn’t it worry you that your proposals are generally repugnant to the liberties of the subject? Isn’t that one of the those things that gives you pause?

    Since Jul 2008 • 1389 posts Report Reply

  • Matthew Poole, in reply to Keir Leslie,

    It would be nice, Keir, if, just once, you could argue the whole post instead of resorting to hunting for precise, legalistic definitions of individual words to support your incapacity to engage on the intended level. You know perfectly well that I'm not using the word "arbitrary" as it's been defined by the judicial process. That includes your need to turn words such as "will" into "regularly" which, as Sacha observes, are not synonymous.

    Doesn’t it worry you that your proposals are generally repugnant to the liberties of the subject? Isn’t that one of the those things that gives you pause?

    Actually, no. If you act like a douche-knuckle in public because you've had too much to drink, I have absolutely no problem with the cops locking you up for 12 hours for the protection of yourself and others. We already provide for people to be held until their sobriety returns sufficient to allow them to make their own way to their place of residence. As you have observed, there exist legal protections, at least in theory, against the Police using their powers of arrest and detention just because they don't like the colour of your skin or the style of your hair. However, in practice those protections are very theoretical.

    The pit from whence crawl… • Since Mar 2007 • 3925 posts Report Reply

  • Keir Leslie,

    You know perfectly well that I’m not using the word “arbitrary” as it’s been defined by the judicial process.

    Oh! So you are using one of the most ringing phrases in several of the most famous protections of our rights and liberties, one of the most loaded and powerful terms in rights jurisprudence, and you want to use it without reference to that, in fact however the hell you like in order to lock more people up? Er. Um. Ah. You know, I have a bit of a problem with that.

    Look, just admit that you don't really have a very good grip on civil liberties, and let it go. Clearly arbitrary arrest doesn't mean what you want it to mean, instead it means the thing you want imposed.

    Since Jul 2008 • 1389 posts Report Reply

  • Keir Leslie,

    , just that anyone they do arrest for fighting in public be locked up for the night instead of just being warned

    This is the proposal on the table. It is trivial to come up with cases this would result in injustice, of course, and that is precisely why it is an arbitrary arrest.

    Suppose Alice and Bob are a married couple. Alice drunkenly slaps Bob, and a policeman, seeing this, comes by and arrests Alice for fighting in public (& possibly for assault in fact). Bob explains that she’s his wife, her mother just died last week, she’s never done anything like this before, she is very emotional, and he would just like to take her home and put her to bed. She apologises profusely, and they both give their details to the policeman.

    The policeman then says: sorry mate, according to the Locking Drunks Up Act 2012, she’s coming to the station with me until morning, no matter what.

    Etc. Etc.

    Since Jul 2008 • 1389 posts Report Reply

  • Matthew Poole, in reply to Keir Leslie,

    The point at which I said the Police would have no discretion over arresting people was ... where, exactly? If you want a massive overreach in statutory power, that would be it.

    As for my use of "arbitrary", how dare I use a plain-English word in its plain-English meaning. I was also not the first (or second) person to use the 'a' word in this thread. Someone else went there first.

    The pit from whence crawl… • Since Mar 2007 • 3925 posts Report Reply

  • Keir Leslie,

    It is deeply hilarious that when you started this conversation, it was all summary offences this and nature-of-precedent that, and now it's plain-English-word-in-plain-English meaning. You can't have it both ways, Matthew.

    Since Jul 2008 • 1389 posts Report Reply

  • Kyle Matthews,

    The policeman then says: sorry mate, according to the Locking Drunks Up Act 2012, she’s coming to the station with me until morning, no matter what.

    Actually I think the policeman would say, "Well now I have to arrest her, because it's domestic violence and it's police policy to always intervene in domestic violence so that the courts and victim support can be involved with both sides".

    Since Nov 2006 • 6221 posts Report Reply

  • Keir Leslie,

    Actually I think the policeman would say, “Well now I have to arrest her, because it’s domestic violence and it’s police policy to always intervene in domestic violence so that the courts and victim support can be involved with both sides”.

    Interestingly, this was precisely the policy that the Kapiti Police operated in AG v Hewitt --- that is, always arresting in cases of domestic violence --- and the High Court ruled that a policy of always arresting without regard to the circumstances of the individual case was (a) not a proper exercise of the discretion to arrest, and (b) arbitrary under s 22 of the Bill of Rights Act.

    So now there is a presumption-of-arrest-unless-exceptional-circumstances policy, not an always-arrest policy.

    Since Jul 2008 • 1389 posts Report Reply

  • Rich of Observationz,

    If people grow up in a society where alcohol isn't normalised and is hard to get, they won't have a problem with alcohol abuse. Yeah, right

    Back in Wellington • Since Nov 2006 • 4484 posts Report Reply

  • DeepRed, in reply to Rich of Observationz,

    If people grow up in a society where alcohol isn’t normalised and is hard to get, they won’t have a problem with alcohol abuse. Yeah, right

    And it was just the same in America 80-90 years ago. Arguably history’s most expensive and ineffectual exercise in attacking the symptom. The War on Drugs may be a close second.

    The southernmost capital … • Since Nov 2006 • 4403 posts Report Reply

  • Joe Wylie, in reply to Rich of Observationz,

    If people grow up in a society where alcohol isn't normalised and is hard to get, they won't have a problem with alcohol abuse. Yeah, right

    A Saudi offends police sensibilities by making "noises like a prehistoric bird so he and his two mates were kept in custody until they were sober.''
    If he'd been from a good family and had indulged in a little carjacking verging on kidnapping, the police would likely have actively supported his right to be publically drunk.

    flat earth • Since Jan 2007 • 3597 posts Report Reply

  • Joe Wylie,

    Mother's Ruin on sale in Paris. Cheaper than Gordon's, pricier than Old Dignity, ffs.

    flat earth • Since Jan 2007 • 3597 posts Report Reply

  • FletcherB, in reply to Joe Wylie,

    by making “noises like a prehistoric bird"

    Hmmm.... that seems like a very hard charge to prove (or defend).

    There is some chance that it's an accurate accusation... but I'm not aware of any pre-historic audio recordings, of birds, their pre-cursors in the evolutionary chain, or in-fact anything before about approximately 100 years ago.

    How would we know what those birds sounded like?

    West Auckland • Since Nov 2006 • 800 posts Report Reply

  • Danielle, in reply to FletcherB,

    I always said my kid screeched "like a pterodactyl" until someone informed me that pterodactyls probably didn't screech at all and I was just brainwashed by the movies.

    Charo World. Cuchi-cuchi!… • Since Nov 2006 • 3663 posts Report Reply

  • Rich of Observationz, in reply to Danielle,

    If you want to hear the noise a dodo made, unmute away:

    Back in Wellington • Since Nov 2006 • 4484 posts Report Reply

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