8.1We take as a starting point that those accused of criminal activity have a right to a fair trial, as affirmed in the New Zealand Bill of Rights Act 1990 (NZBORA) and given effect through the minimum standards in sections 24 and 25 of that Act. In our Issues Paper, we took the preliminary view that the use of closed procedures in criminal prosecutions cannot be reconciled with fair trial rights. This view received widespread support from submitters and in our consultation meetings. We therefore recommend that the changes outlined in earlier chapters to introduce closed procedures in some tightly defined civil cases will not be applicable to substantive criminal trials.
8.2The New Zealand Security Intelligence Service (NZSIS) and the Government Communications Security Bureau (GCSB) submitted that closed procedures in a criminal trial should not be ruled out. They stated that, under the current system, a case might arise in which an integral piece of evidence would present security risks if disclosed, and the Crown would then be faced with a choice between being unable to properly prosecute and revealing national security information. We acknowledge that the Crown will be faced with this choice. However, we agree with the Criminal Bar Association that the right to a fair trial requires that:
... the defendant and his/her fully informed representative have enough knowledge about the evidence making up the case against the defendant to make it possible to investigate, verify, challenge or rebut that evidence effectively. This is an irreducible minimum standard of fairness.
8.3Put simply, a person accused of a crime must be able to present an effective defence, and this means they must have access to material being used against them and material that might assist them in defending themselves. There is also a strong open justice interest in public proceedings. We recognise that, in a number of areas, there have been justifiable limitations to this. However, we reiterate that it is up to the court to decide what level of disclosure is required to meet the standard of fair proceedings.
8.4In the course of our review, we have identified some areas in which more minor reforms could improve the status quo. We accept that Police should be able to use secure information in their investigations in order to protect public safety and follow up on areas of potential criminal offending uncovered by the security and intelligence agencies. At the same time, this information must be protected in any downstream proceedings, while also upholding fair trial rights.
8.5The use of secure information in Police investigations raises issues for this review only when it creates potential questions about disclosure in proceedings. This can occur in two areas: first, if the Police apply for a search warrant on the basis of secure material and this is later challenged; and second, if the information becomes relevant to a criminal prosecution.
8.6We suggest in this chapter that, if a search warrant is issued on the basis of national security information, a challenge to that warrant could be heard using a closed procedure where this is necessary to protect the information.
8.7Where security information is relevant to criminal proceedings, the current law provides an exception to the ordinary disclosure requirements and allows the information to be withheld from the person charged. The person charged can challenge the non-disclosure but will have no access to the information and therefore limited ability to present arguments for disclosure.
8.8We consider that this should be reformed to provide for the use of a special advocate. The special advocate would be able to advance arguments that the information should be disclosed because the information is not national security information or because the security risks do not justify non-disclosure. The special advocate would also be able to argue that withholding the information is prejudicial to the accused because the information would be advantageous to their case and that therefore the proceedings should be dismissed. The judge should have the power to order that the material be disclosed or alternatively that proceedings be dismissed if disclosure is necessary for a fair trial but the security risks are such that the information should not be disclosed to the accused.
8.9Finally, it should also be made explicit that the prosecutor should be able to withdraw a criminal prosecution if the judge orders disclosure of security information but the Crown considers the risks of disclosure are too high to justify continuing with the prosecution. If a judge dismisses the proceedings, this is deemed to be an acquittal. In contrast, if proceedings are withdrawn, there is scope for them to be brought again, for example, if further evidence is discovered.