It is time for an independent review of the way in which the New Zealand Police carry out search and surveillance operations against New Zealanders.
A series of high-profile cases in which the courts have strongly criticised the police's actions and imposed sanctions such as staying prosecutions demonstrates an extremely concerning state of affairs.
The number of cases involved now makes it plain that these are not simply isolated examples of specific operations being botched: there is a systemic problem which must be addressed if the public is to have confidence in the New Zealand Police.
The Te Urewera Raids took place in October 2007. In the five years since then, courts ranging from the District Court to the Supreme Court have criticised police actions in the strongest terms when ruling on a number of different cases.
The following are four examples.
First, on September 2, 2011, the Supreme Court in the case of R v Hamed unanimously ruled that disputed evidence relating to the Te Urewera Raids had been improperly obtained by trespass. The court concluded that warrants obtained under section 198 of the Summary Proceedings Act 1957 were invalid as they had been obtained in advance. Chief Justice Dame Sian Elias said that the police impropriety had been deliberate and had persisted for many months. The breaches of the New Zealand Bill of Rights Act 1990 were not merely technical but, rather, flagrant and deliberately-undertaken violations.
Astonishingly, given the revelations in recent days relating to the Nelson Red Devils' case, Justice Elias referred to the fact that the police had attempted to obtain "judicial oversight" of their activities when acquiring the warrants. She criticised the police's attempt to implicate the judge in their activity as a troubling feature of the case.
Secondly, on June 28, 2012, Chief High Court Judge, Justice Helen Winkelmann, delivered a ruling in relation to the Kim Dotcom raid. She found that the search warrants relied on were invalid. The police search and seizure was accordingly illegal.
Further, even if the warrants had not been invalid, Justice Winkelmann said that the police in executing the warrants had exceeded what they could lawfully be authorised to do. And, to compound the illegalities, the release of cloned hard drives to the FBI for shipping to the United States was contrary to a direction given by the court in February 2012 that seized items were to remain in the custody of the Commissioner of Police.
Thirdly, on August 10, 2012, Judge Chris Tuohy in the District Court ruled that evidence obtained by police who had chainsawed their way into Nelson gang the Red Devils' headquarters had been improperly obtained. The judge said that the force used was unlawful and unnecessary and there had been significant infringements of the defendants' rights.
He ruled that a credible system of justice required exclusion of the evidence. Charges against 28 people were accordingly dismissed.
Fourthly, High Court judge, Justice Simon France, reached exactly the same conclusion on October 24, 2012, when he stayed the prosecutions of 21 people charged with offences relating to drugs and participation in an organised criminal group. Those charges also stemmed from covert surveillance of the Red Devils.
The police had sought to bolster the credibility of one of their undercover officers by organising a false search warrant and laying false charges against the officer. A false oath was sworn and the man appeared in court several times before judges who were unaware of the deception.
Police visited the then-Chief District Court Judge to advise him of what they planned. Justice Simon France accepted that the police believed that they had obtained approval for what they did but he stated that there was a significant measure of recklessness in holding that view.
He described the police's actions as involving a fraud on the courts, being undertaken without legislative authority and appearing to involve the commission of criminal offences.
The judge expressed strong surprise that police did not seek legal advice about the use of a fake warrant, the plan to lay false charges and the rest of the deception involved in their plan. The judge went on to say that the police belief that their actions were acceptable was a product of lack of external advice and any proper scrutiny. Further concerning aspects were that the police had significantly misunderstood the role of the courts and the judiciary's independence from the police.
The only appropriate response, accordingly, was to throw out the charges.
Justice Simon France said that, as a consequence of his ruling, it was to be expected that the police would take advice and, where necessary, adjust their practices. The judge said that he doubted that a false information about a fictitious offence would be sworn again.
However, in light of the above cases, can New Zealanders really be confident about this ?
The pattern of illegality on the part of the police appears to be so pervasive that outside eyes are required to remedy the situation.
That is exactly why an independent review either by the Independent Police Conduct Authority or by a Queen's Counsel is required. Among the issues it should investigate are the following:
How widespread are police breaches of the laws relating to search and surveillance - have all of the cases come before the courts or are there other cases of which the public is not yet aware ?
What legal advice do police obtain before search and surveillance ?
What nationwide, ongoing monitoring is there of search and surveillance operations by Police National Headquarters?
How adequate is police training in relation to the role of the courts and the separation of powers?
What review and external scrutiny of police operations are provided for in police procedures?
What training do police receive on the need for police officers to adhere scrupulously to the law in their work and on the importance of the rule of law?
Have police received adequate training in relation to the new search and surveillance laws which have just come into force?
Have any steps been taken to sanction police officers involved in unlawful activity and will any prosecutions be laid?
What other cases have there been of the police involving judges in unlawful activity?
The examples of unlawful police activity discussed above are of even more concern at present since, on October 1, the Search and Surveillance Act 2012 took effect. The new legislation has been hugely controversial and greatly expands the state's power to conduct surveillance of individuals.
It is therefore particularly important for the public to be confident that the new laws will be applied properly and will not be abused.By Catriona MacLennan