IPCA on Police investigation of GCSB complaint

July 18th, 2014 at 2:00 pm by David Farrar

The have investigated the decision by the Police not to lay charges over the illegally spying on . Their report is here. Some extracts:

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.

 

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23 Responses to “IPCA on Police investigation of GCSB complaint”

  1. Pete George (23,559 comments) says:

    @KimDotcom

    I’m seriously considering a private prosecution against GCSB spies because of illegal surveillance. My legal team is now in preparation mode

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  2. GPT1 (2,121 comments) says:

    The Greens are a disgrace on this. It would have been extraordinary if the Police prosecuted against the advice of the SG quite apart from the public interest criteria which I think any reasonable objective observer would have to agree on.

    The Greens are bloody shocking for demanding everyone follows every law they like and constantly ignoring advice, laws and rulings if they don’t like it.

    Let’s turn this around and say police decide to prosecute every cannabis possession (the first difference here is that prima facie the possessors have actually broken the law). The Greens would be the first up in arms about abuse of power, disproportionate effects on Maori etc.

    Red Russ should refresh himself on the separation of powers. Tool.

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  3. GPT1 (2,121 comments) says:

    @KimDotcom

    I’m seriously considering a private prosecution against GCSB spies because of illegal surveillance. My legal team is now in preparation mode
    Speaking of tools.

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  4. ROJ (121 comments) says:

    Sounds like a well balanced report. No whitewash.

    The Police can be seen to have considered taking a case, and sought advice on the ambiguity, and heeded that well-informed advice.

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  5. G152 (337 comments) says:

    So another bit of BS from Crim dot con to avoid his trip to the USA

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  6. ROJ (121 comments) says:

    KD may actually have a case now, that wasn’t available to the Police, since it appears the uncertainty about the “inherently uncertain law” has since been removed.

    I hope somone can tell me this is akin to double jeopardy and we can move on ?

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  7. Lance (2,655 comments) says:

    Come on now
    The self appointed foreign puppet master wants you all to dance. As we all know everything is about him.

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  8. Jinky (185 comments) says:

    “Kim Dotcom did have his rights broken by an illegal act by the GCSB” as did 88 other NZ citizens or residents. This was not a one off nor confined to one occasion. I feel it would certainly be in the public interest for the Police to lay charges. “I was just following orders” is not good enough as a defence to criminal activity. Just as “Ignorance of the Law is No Excuse”.

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  9. lastmanstanding (1,293 comments) says:

    Question. If we live in a country with one set of laws that apply to all equally then this case has now created the “GCSB Defence”

    That is if a citizen does not INTEND to breach a law but does so then they will not be prosecuted.

    It has also established that where a citizen may be unsure about the law or does not fully comprehend and understand the law then they can claim a defence as set by this precedent.

    I would humbly suggest that those who have trumpeted this as a success carefully ponder on the consequences of the law being applied severally and unequally and that at the future date there may be a government in power who choses to apply the law to them in this manner.

    Be careful what you wish for.

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  10. lastmanstanding (1,293 comments) says:

    PS I am no supporter of Kim Dotcom in fact quite the reverse but I want to live in a country and society where the law is applied equally to all with fear or favour NOT to suit the whims of the government in power at any one time.

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  11. polemic (460 comments) says:

    The air time this crook has gained is hard to believe.

    I continue to ask the question why did Banksy get such a rough up when this KD rides rough shot over laws, people, his staff, Governments and does it with ease and aplomb and so far is getting away with it all.

    Yes the GCSB and or the Police may have made some procedural mistakes as did Banksie but KD does this with flair, purpose and totally deliberately.

    Please explain???

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  12. AG (1,827 comments) says:

    But that is different to saying that a staff member should face criminal prosecution for an honest error over someone’s residency status.

    Right. There may have been little public interest in bringing such a prosecution (as the IPCA noted). What seems odd, however, is that the Solicitor General thinks that no prosecution can ever be brought no matter how great the public interest may be, because the offence provision requires that the GCSB expressly knew what it was doing was illegal … a requirement which is not immediately apparent from the provision’s wording.

    The IPCA then specifically says it couldn’t consider whether the SG was right on this point, and so given that limit to its inquiry, the Police’s actions were always going to be judged OK. So, yeah – if you ignore the really interesting/important point, there’s nothing to see here.

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  13. david (2,557 comments) says:

    And the whingeing Aussie ginga bleats on because the INDEPENDANT Police Complaints Authority didn’t come up with the answer that he wanted. There is a theme of demanding an INDEPENDANT investigation – just what part of IPCA does he not understand?

    Not a good look for the Australian Education system but I suppose he gets some more facetime on TV in election year even if he is spouting nonsense.

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  14. wikiriwhis business (3,996 comments) says:

    What a con

    That would have come from the highest political levels namely the head of the SIS not to lay charges against the GCSB

    Much th esame as the minister of police is not charging police over covering up 700 counts of crime

    The National Socialist Party is corrupt to the core

    As well as their fraudulent business people who owe more than $6b in unpaid tax whilst the National Socialist supporters lay red herrings about beneificiaries.

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  15. Longknives (4,741 comments) says:

    I think Wussel is still pissy that he never got his flag back….

    http://www.youtube.com/watch?v=cILQWybsTZg

    Bad luck again Wussel- The great irony being that your hero Dotcom is now stealing all your voters…

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  16. Nookin (3,341 comments) says:

    “What seems odd, however, is that the Solicitor General thinks that no prosecution can ever be brought no matter how great the public interest may be, because the offence provision requires that the GCSB expressly knew what it was doing was illegal … a requirement which is not immediately apparent from the provision’s wording.”
    Assuming that to be the view of the Solicitor General (and I am not challenging you – I simply have not seen his opinion), I think he is pushing it to suggest that a criminal charge requires proof of knowledge of illegality. However, some element of mens rea must be involved. Ever since the passing of the legislation (2003?), everyone proceeded on the basis of an unchallenged interpretation which allowed GCSB to assist the police. Indeed, despite Dr Norman’s somewhat extravagant and exaggerated assertions that 88 people have been found to have been spied on illegally, there has been no definitive determination that the previously accepted interpretation is incorrect.

    It does seem to me that there is a distinct difference between knowledge of an illegality on the one hand and a bona fide and reasonably held belief in the legality of an action even though that belief may be erroneous because of the equivality of the section.

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  17. Igotta Numbum (463 comments) says:

    lastmanstanding (1,199 comments) says:
    July 18th, 2014 at 2:42 pm

    Question. If we live in a country with one set of laws that apply to all equally then this case has now created the “GCSB Defence”

    That is if a citizen does not INTEND to breach a law but does so then they will not be prosecuted.

    But this only occurred because of the ambiguity in that particular piece of law… changes that were made by Labour.

    Those ambiguities don’t arise in other laws we have.

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  18. jackinabox (776 comments) says:

    The PCA said the cops were the good guys in this case too.

    http://www.converge.org.nz/watchdog/94/7david.htm

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  19. goldnkiwi (1,304 comments) says:

    Intent is very much part of our laws. Intent could be seen to be the difference between manslaughter and murder for example.

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  20. goldnkiwi (1,304 comments) says:

    I reckon the raid at Dotcoms would have been like American cop shows, they have guns blazing and helicopters, NZ can now embrace the ‘culture’.

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  21. polemic (460 comments) says:

    Could still be better than Putins culture though??

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  22. Mark (1,488 comments) says:

    The GCSB was an embarrassment that seems to have been brought back into line. Decision by the police complaints authority is sound enough and the case closed. Time to move on

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  23. jackinabox (776 comments) says:

    ” Decision by the police complaints authority is sound enough and the case closed. Time to move on”

    A private prosecution conviction will show one and all just how unsound the IPCA is.

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