Sometimes the rather constrained interpretation that courts give of the rights of a suspect lead us to suspect that judges tend to forget that rights are given in the overall interests of society. Rights belong to everyone, and they have a social utility. They can provide useful opportunities to check that power is being correctly exercised, thereby minimizing official error.
An example of constrained interpretation of rights is the holding in R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA) that the police do not have to facilitate the exercise of the suspect’s right to legal advice right unless the suspect indicates a wish to exercise it. On that approach, the right only covers informing the suspect of the existence of the right, which, indeed, is following the letter of the New Zealand Bill of Rights Act 1990. There is, according to Mallinson, no need to tell the suspect how the right might effectively be exercised; in particular, there is no need to tell the suspect about the existence of a list of lawyers who make themselves available free of charge for the purpose of giving advice, and of private access to a telephone.
Fortunately, there has been a widening of perspective since then. Mallinson was decided by five judges, but a 3 judge bench in R v Kai Ji [2004] 1 NZLR 59 (CA) held that telling the suspect of the availability of free legal advice was integral to the existence of the right to be informed of the right to consult a lawyer under s 23(1)(b) of the Bill of Rights. This change in approach reflected the introduction of the statutory Police Detention Legal Assistance scheme in the Legal Services Act 2000, which established in statutory form a practice that had existed when Mallinson was decided.
The Privy Council has extended the right to legal advice to those who are arrested, not on suspicion of committing an offence, but for non-payment of fines: Ramsarran v Attorney-General of Trinidad and Tobago [2005] UKPC 8 (28 February 2005). The social utility of the right is apparent (para 11):
"In their Lordships' view the fundamental reason why section 5(2)(c) covers cases of non-payment of fines is that it is necessary to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence have an effective and practical means of securing their release as soon as possible. That may be illustrated by the case before the Board. If the appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for payment of the fine, and could have made a speedy habeas corpus application if this did not secure the appellant's early release. One would have expected that a lawyer's intervention would have effected the appellant's release long before three days had elapsed. One may readily envisage other cases in which access to legal advice would be of material assistance to a person arrested and detained. In a case of mistaken identity he may be arrested for non-payment of a fine imposed upon another person. It is possible to envisage other occasions apart from pretrial situations on which unjustified arrests might take place. In none of them could it be said that the requirement of access to legal advice would be unnecessary, let alone "farcical", as Sharma JA suggested. On the contrary, it seems to their Lordships that it would constitute a very real help in time of trouble."
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