As has been noted above (para 22) the Police decision was based squarely on an opinion provided by the Solicitor-General, and it was an opinion that Police Legal Services recommended ought to be followed. As also noted above (para 26), it is not within the jurisdiction of the Authority to review the validity of that opinion or to determine whether the test used by the Police to determine legal liability was legally accurate: our task is confined to determining whether Police actions were appropriate. In our view they clearly were. The Police were entitled to rely upon advice as to the law provided by the Solicitor-General. Indeed, having received the opinion it would have been surprising if they had proceeded on any other basis.
However, even if the Police had proceeded on the basis that criminal liability did not depend upon proof of an intent by GCSB officers to act outside their statutory authority, we take the view that a decision not to prosecute would nevertheless have been warranted. There are two reasons for this.
First, the one interception of Mr Dotcom that the Police found to be unlawful in fact contained only metadata (being data embedded in a communication that relates to its form and time, date and circumstances of transmission rather than its content). As noted below (para 47), the report by the IGIS in May 2013 had expressed the view that the law was uncertain as to whether metadata fell within the scope of a private communication by a person. In the light of that uncertainty, a decision not to prosecute on that ground would not have been unreasonable.
Secondly, the Solicitor-General’s Prosecution Guidelines require not only that there be evidential sufficiency for a prosecution, but also that it be in the public interest. The evidential sufficiency threshold would have been met, but arguably the public interest threshold would not have been.
This is pretty resounding. First they say that to suggest the Police should ignore the advice of the Solicitor-General is stupid, as Dr Norman said. Then they point out that the law around meta data was unclear anyway, and thirdly there would be no public interest it is likely.
Kim Dotcom did have his rights broken by an illegal act by the GCSB. But this needs to be out in context. The Police were legally entitled to put him under surveilance and intercept his communications. The GCSB just shouldn’t have assisted them with this.
On the alleged conflict of interest:
As she interpreted her terms of reference, Ms McDonald’s role was a limited one. It did not involve the provision of advice about the law that was to be applied to the facts of the case.
Even if Ms McDonald had had a more extensive role, it is hard to see how this would have created a conflict of interest. A conflict of interest cannot arise from the mere fact that she was acting for or providing advice to the Police in two respects in relation to the same set of events. The Police investigation that she was overseeing was an independent investigation into the activities of the GCSB; the fact that she was acting for the Police in proceedings in which the GCSB was involved as a separate party cannot preclude the ability to provide impartial advice in relation to that investigation.
And the third issue:
The other four interceptions that related to content all involved assistance to the NZSIS in the execution of a lawful issue of an intelligence warrant under the New Zealand Security Intelligence Service Act. Section 4D of that Act allows the NZSIS to obtain assistance from another agency to effect the execution of an intelligence warrant. Although there was some doubt about whether the GCSB was allowed to provide such assistance within the ambit of their Act as it then stood, there was sufficient statutory ambiguity to raise doubts about whether any unlawfulness was involved.
The Police determined, on the basis of that report, that the additional intercepts were not unequivocally unlawful and would clearly not reach the threshold to justify prosecution.
The Authority agrees with this view. Dr Norman argues that, since it can be said that there was, in the words of the IGIS, “arguably no breach”, it could equally be said that arguably there was a breach, and New Zealanders who were spied upon deserve to know whether the actions were lawful and justified. That may be so, but a full Police investigation into the GCSB’s activities in those cases would have been unable to provide such clarification, since the Police would not have been in the position to reach a determinative view on the statutory ambiguity. Only the courts could have done that, and the criminal prosecution of individuals in an attempt to clarify an inherently uncertain law would have been unjustified.
It is worth noting that there have been consequences for the GCSB failure. The Deputy Director was let go. The Inspector-General’s role has been beefed up, and there has been wholesale change due to the Kitteridge Report. And these things should happen. But that is different to saying that a staff member should face criminal prosecution for an honest error over someone’s residency status.