Silence protects whose liberty?

The right to silence is a founding common-law principle that is enshrined in the Bill of Rights.

It applies to anyone whether they know something or not, and whether guilty of a crime or not; and it applies to witnesses as much as to suspected criminals.

The rights to not be deprived of life nor subjected to torture and cruel treatment are also founding common law principles, and they too are enshrined in the Bill of Rights.

They apply to anyone whether they are fully cognitive or not, and whether they have been naughty or not; and they apply to children as much to adults.

We are fortunate to live in a country that enshrines these principles in law. In other countries, such principles fall victim to the whims of government.

But that does not mean these principles are not being abused. They are being abused with frightening regularity and with heart-rending consequences.

This newspaper has published far too many stories about child abuse, about assaults on children, and about infanticide.

Official figures record 138 child homicides in New Zealand since the beginning of 2004. That is an average of nine a year. Last year, 12 children died in suspicious circumstances.

The crimes behind many of these deaths were revealed with the help of the victims’ families and friends. Others were blighted by misguided loyalties and outright cover-ups.

In some cases, family and friends refused to co-operate with the police. They obfuscated or they lied. Or, in some cases, they remained as silent as they were when the abuse took place.

Recent cases of such miserable silence have led to renewed calls to review the right to silence in cases where child abuse is suspected, and for a law to make failing to co-operate with police investigating such cases an offence.

Act party deputy leader Beth Houlbrooke has a member’s Bill to apply such an offence when there are reasonable grounds to believe someone knows how a child suffered serious non-accidental injuries. If that person fails to answer reasonable questions from the police, they would be prosecuted.

Such a move is not without precedent. Police officers conducting breath tests, and fisheries officers and customs officers have the power to require information from their suspect.

The National Party says such a new offence would have a maximum penalty of three years in prison. Its version would be similar to the Failure to Disclose offence introduced in Victoria in 2014.

Proponents say such a change is not the thin end of the wedge, and that it is in no way a significant move from the proposition that the State should not be able to force someone to incriminate themselves.

Indeed, it is considered a necessary move to get justice for so many young, voiceless victims.

Former lawyer and judge Andrew Becroft spent a career believing the right to silence was part of the fabric of our legal system. Now, after all he has seen as Children’s Commissioner, he says the right to silence in cases where child abuse is suspected should be abolished or amended.

In 2011, Starship Hospital child protection director Patrick Kelly told the inquest into the death of the Kahui twins that victims’ rights to justice outweighed the right to silence some use to mask their guilt or involvement.

The Crimes Amendment Act, brought in after the Kahui trial, allows the prosecution of anyone who has frequent contact and knows a victim is at risk, but fails to take reasonable steps to protect them.

It does not address the right to silence, which holds up investigations, but it allows for the prosecution of those who stay silent if there is evidence they stood by when they could have acted.

Parliament decided that was enough even as the country recoiled at the details of the Kahui twins’ death. Nearly a decade on, we continue to recoil and the right to silence remains.

And we continue to ask: when does someone’s right to liberty outweigh a victim’s right to life?