Dalziel Lianne: Policing (Storage of Youth Identifying Particulars) Amendment Bill — In Committee Third Reading 
Text is incorporated into the Bound Volume 
Dalziel Lianne: Policing (Storage of Youth Identifying Particulars) Amendment Bill — In Committee Third Reading 
[Sitting date: 16 August 2011. Volume:675;Page:20913. Text is incorporated into the Bound Volume.] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I wish to traverse in the third reading of the Policing (Storage of Youth Identifying Particulars) Amendment Bill the sequence of events that brought us to today in respect of this bill.  
The starting point for this is of course the Police Act 1958 section 57(3). It states: “If the person in respect of whom particulars have been taken under this section is acquitted the particulars shall be forthwith destroyed: Provided that this subsection shall not apply if the person is acquitted on account of his insanity or is discharged under section 19 of the Criminal Justice Act 1985 or section 347 of the Crimes Act 1961.” This provision referred to particulars and the particulars in this case include his—and of course this was written in the masculine gender in those days; we did not have these nice gender-neutral pieces of legislation that we do today but given the criminal offending statistics it is probably appropriate for this bill—photograph fingerprints palm prints and footprints and may use or cause to be used such reasonable force as may be necessary to secure these particulars. So that had been the law since 1958 which is of course quite some substantial period of time.  
It was timely that the new law the Policing Act took effect in 2008. It was 50 years since the previous law was enacted and yes there had been a myriad of amendments. I think the former Minister the Hon Annette King highlighted it as more of a patchwork of legislation rather than a complete whole as the Policing Act 2008 was want to be. The Policing Act 2008 was a major change in that it modernised the law. There were certain features of the law that it wished to replicate but in a modern sense and not to derogate from it. Some of the language as we have already heard certainly needed to be updated—“if the person in respect of whom particulars have been taken under this section is acquitted the particulars shall be forthwith destroyed.” Of course that highlights essentially that those particulars were kept unless the person was acquitted and even when the person was acquitted if it was acquittal as a result of an insanity finding or there was a discharge without conviction then that exception did not apply and the particulars were retained.  
This law has always been about the police’s right to hold on to information that they have collected from people in investigating a charge but only being allowed to retain it on securing a conviction. Obviously the law allowed for two instances in the good old days in 1958 which is actually prior to my date of birth where they were allowed to keep that information. One was acquittal on the basis of insanity. That is because in many cases—and I have spoken to people who have been the family of murder victims for example—somebody has been acquitted by reason of insanity. The family of the murder victim find the acquittal incredibly difficult to deal with because of course the person has committed the act but is not guilty of the offence because he or she does not have the mens rea for the offence to be committed. So that person is not capable of forming the intention and not capable of pleading in the case. In that instance the Parliament of the day decided that it was in the best interests of justice that that information be made available and continue to be able to be retained by the police.  
It is the same for those people discharged without conviction. We have heard a lot about discharge without conviction in this House today. It is simply nonsense to suggest that this somehow undermines the status of a discharge without conviction because in order to get a discharge without conviction the facts must be admitted. A person has to admit that he or she undertook the acts complained of and committed the offence then that person is discharged without conviction. It is a “get out of jail free” card. It is literally that. I believe that there has been a complete misunderstanding of the nature of that because the facts are admitted. Given that the facts are admitted and the fact that under those circumstances that would be the only circumstance where the police could not retain those particulars it seems to me that a judge would be less likely to discharge without conviction if he or she thought that that would stop the police from using that information in the future. Sometimes when people are given a “get out of jail free” card they use it and other times they do not. I think that a judge might well be mindful of that fact and say “I’m not prepared to take that risk so I’m not going to give that person a discharge without conviction.” I think we should be cautious about following that particular line as proposed by the Maori Party.  
Then we come to the Policing Act 2008. Really all the Policing Act did that was different was that it talked about an alternative resolution being imposed where the person admits to an offence like diversion. Given that discharge without conviction is an admission of offence and here are some alternative resolutions to be imposed where a person admits to the offence the same thing now applies in our Youth Court. In fact we have now as I said in the Committee stage in the Youth Court a hierarchy of court responses if the charge against a young person is proved. All this does is give the court the power to be a little more lenient perhaps a little more leaning towards an outcome that would be better for the young person’s health and well-being and maybe leading them off the trajectory the pathway to crime that they are on at that time. I think that under those circumstances there is no question in my mind that there was a sense in Parliament when this law was passed in 2008 that the alternative resolution area was an area where the police were going to be allowed to retain those identifying particulars.  
The only reason we are debating this issue today is that young people have better options available to them through the Youth Court and this clause does not reference those options. That is it. That is the only reason we are even debating this today. It is on that basis and also on the basis of this one statement in the regulatory impact statement which I feel sums it up: “There is no evidence of a policy decision during the development of the Policing Act 2008 to reduce the circumstances under which Police could retain youth IP.” The reason there is no evidence of a policy decision during the development of that Act is that there was no policy decision to reduce the circumstances under which police could retain youth identifying particulars as opposed to any other identifying particulars. I believe that it is an appropriate use of this House’s time under urgency to pass a law through all of its stages in order to rectify a genuine mistake when there was no policy decision that was upset as a result. For me it is a pretty straightforward conclusion.  
The final point I want to make is this: I would normally rail against any form of retrospectivity. Yes I did use the word trillions because it was just the word that came into my head. The truth is that if this bill had gone to a select committee then every lawyer who has represented a young person in a case where the police had relied on fingerprints as any part of the evidence against a young person—I do not think photographs would be the reason for the conviction—would not come to the select committee to tell it how to improve the legislation. They would go straight to their clients to say “We can get you off. We may not be able to guarantee that we can get you off but we have a jolly good chance because there is no precedent value for this where there is only one item of evidence. So we may have a better chance.”  
The truth is that very few people from those examples will be in that situation but I do not think it is a justified use of this country’s expensive judicial system to even go down that track. That is why I support both the retrospectivity and the substance of the changes. They are minor technical amendments to satisfy a mistake made in 2008.