IPCA on Police investigation of GCSB complaint

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

The IPCA have investigated the decision by the Police not to lay charges over the GCSB illegally spying on Kim Dotcom. 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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Suicide by cop

June 30th, 2013 at 9:16 am by David Farrar

The HoS report:

Police fatally shot burglar Adam Morehu in the back, before hitting him over the head with a torch, his family says.

Details on the two bullet wounds have emerged after the Taranaki man’s body was returned to his family for burial, along with a preliminary pathologist’s report.

“I don’t know that I would grieve any less if he was shot in the front, but being shot in the back – that’s just wrong,” said Diane Richardson, the mother of his partner Kaly.

Even if the family are correct, surely the key issue is why were the Police shooting Morehu?

Police say Adam Te Rata Charles Morehu, 33, was first Tasered, then shot twice in the torso with a police-issue Glock handgun after he acted aggressively towards the officers, twice threatening to kill them and firing a shot from a rifle.

He not only threatened to kill the Police, but he fired his rifle. At that point he was doing suicide by cop. He refused to surrender to armed police, he threatened to kill them, and he fired his rifle.

But they have refused to confirm to the Herald on Sunday that he was shot in the back, saying only that the officer believed he heard Morehu reloading his rifle in the darkness.

I don’t care what the angle is. This is not some Western duel or gunfight. He fired his gun, and refused to surrender. You don’t give him a sporting chance to kill you. You fire.

Kaly had been angry at Morehu for going on the alleged burglary, Richardson said, but more angry still to discover that he need not have died.

Indeed. All he had to do was drop his gun and surrender. Her anger should all by at Morehu, and not at the poor cops who had to risk their lives being shot by him.

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IPCA report on Operation 8

May 22nd, 2013 at 12:55 pm by David Farrar

The IPCA report on the Urerewa Operation 8 can be found here. Key conclusions:

  • The  Authority  has  found  that  Police  were  entitled,  on  the  information  they  had,  to  view   the  threat  posed  by  this  group  as  real  and  potentially  serious.    The  investigation  into  such   activities  by  Police  was  reasonable  and  necessary.  
  • From  a  policing  perspective  the  termination  phase  of  Operation  Eight  was  concluded   safely.    No  shots  were  fired  by  Police  or  others,  despite  Police  locating  a  number  of   firearms  and  weapons.    All  target  individuals  were  located  without  incident  and  no   members  of  the  public  were  put  at  risk.  
  • The  planning  and  preparation  for  the  execution  of  search  warrants  on  termination  of   Operation  Eight  was  largely  in  accordance  with  applicable  policy.    It  involved  huge   logistical  challenges  given  that  search  warrants  had  to  be  executed  simultaneously  across  the  country.    Those  individuals  who  were  considered  by  Police  to  pose  the  greatest  risk   were  quickly  and  safely  apprehended.      
  • In  contrast,  the  planning  and  preparation  for  the  establishment  of  the  road  blocks  in   Ruatoki  and  Taneatua  was  deficient.    The  Authority  has  found  there  was  no  lawful  basis   for  those  road  blocks  being  established  or  maintained.  There  was  no  lawful  power  or   justification  for  Police  to  detain,  stop  and  search  the  vehicles,  take  details  from  or   photograph  the  drivers  or  passengers.      
  • There  was  no  assessment  of  the  substantial  and  adverse  impact  of  such  road  blocks  on   the  local  community.    The  road  block  at  Ruatoki  was  intimidating  to  innocent  members  of   that  community,  particularly  in  view  of  the  use  of  armed  Police  officers  in  full  operational   uniform.      
  • The  majority  of  complaints  received  by  the  Authority  in  relation  to  property  searches   were  not  from  target  individuals  but  rather  from  other  occupants  at  these  properties   complaining  about  the  way  they  were  treated  by  Police.  Some  felt  they  were  being   treated  as  suspects.    A  number  of  occupants  were  informed  by  Police  that  they  were   being  detained  while  a  search  of  the  property  occurred,  despite  there  being  no  lawful   basis  for  such  detention.  Police  had  no  legal  basis  for  conducting  personal  searches  of   these  occupants.  
  • The  Authority  has  concluded  that  a  number  of  aspects  of  the  Police  termination  of   Operation  Eight  were  contrary  to  law  and  unreasonable.    In  a  complex  operation  of  the   type  that  was  undertaken  here,  there  are  always  a  number  of  important  lessons  to  be   learned  about  future  Police  policy  and  practices.    The  Police  internal  debrief  following  the   termination  of  Operation  Eight  has  already  identified  a  number  of  those  lessons  and   necessary  changes  to  Police  training,  policy  and  operational  instructions  have  been  made.     The  Authority  has  made  a  number  of  other  recommendations  in  light  of  its  own  findings.     This  includes  the  need  to  re-­‐engage,  and  build  bridges,  with  the  Ruatoki  community.  

This looks a sensible and well balanced report. In short the conclusions are:

  1. The operation against those arrested was justified as they posed a real and serious threat
  2. The actual arrest and treatment of those arrested was done properly and lawfully
  3. The treatment of the wider community was over the top, insensitive and in some cases unlawful

The Ruatoki community do deserve an apology for their treatment by the Police. I think they have had one already, but will no doubt receive another. It is worth noting that of course we now have a different Police Commissioner and Minister of Police as from 2007.

But let’s not make martyrs out of those arrested. They were acting somewhere between very foolishly and with malignant intent, and the Police were right to bring their activities to an end. Their personal treatment was not generally criticized by the IPCA. They also bear some of the blame for provoking the Police action in Ruatoki. 17 firearms were found in three properties at Ruatoki, and 12 smashed Molotov cocktails at their training camp.

But as I have commented before, the Police response did seem over the top – and the IPCA has agreed. We expect better  from our Police than we do of Tame Iti and Valerie Morse. They have a job ahead rebuilding confidence with Ruatoki.

 

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Well done Taranaki Police

January 26th, 2013 at 11:00 am by David Farrar

Leighton Keith at Stuff reports:

Wheel clamper Daniel Clout claims police are making it impossible for him to do his job and he has complained to their watchdog.

His complaint to the Independent Police Conduct Authority (IPCA) includes transcripts from extraordinary video footage of clashes with motorists, police and a discussion with area commander Inspector Blair Telford.

Can the IPCA issue letters of commendation to the police officers complained about?

The police stance that his work was unauthorised was publicised late last year and he says he has been subjected to an increasing number of attacks from members of the public since then.

He claims police had been undermining his authority by telling people he was acting unlawfully, didn’t hold the required licence to do the job and that they could cut his clamps off.

Excellent public information campaign.

Other footage, shown by Mr Clout to the Taranaki Daily News, appears to show police were present when a man smashed his clamps with a wheelbrace.

That’s appalling. The man may have injured himself. The Police officers should have helped with the smashing.

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Police reopen Brash e-mails investigation

July 23rd, 2009 at 9:00 am by David Farrar

I blogged on the 8th of July some basic steps that I believed the Police should have done in investigating the stolen Brash e-mails:

  1. Compile a masterlist of every document referenced in Hager’s book
  2. Sort them into groups – e-mails, faxes, etc
  3. For the e-mails record down when each e-mail was received, and when it was deleted if it was. This will provide a window of time as to when the theft occured.
  4. Also for each e-mail record who has access to it. Who was cc’d or bcc’d it. Who had access to a printed copy.
  5. Look for common patterns in access, to try and narrow down which e-mail account or accounts were probably accessed
  6. Look at the date of the final document used in the book. It is likely the theft took place soon after that.
  7. Obtain staff lists for National during that period. Look especially at anyone who joined just before the thefts occurred.
  8. Obtain swipe card records for the Leader’s Office for the period just after the final documents cited.

As far as I know, the original inquiry did none of this. Don Brash has a complaint with the IPCA over the inadequacy of the investigation.

Tracy Watkins from the Dom Post reports that the Police appear to have reopened their investigation, which is an implicit acknowledgement of the failings of the original investigation:

Police have been interviewing parliamentary cleaners and security guards after reopening their investigation into the Don Brash email files.

A team of up to four police officers has been involved in the investigation which is understood to have been reopened several weeks ago after Police Commissioner Howard Broad put one of his top officers, assistant commissioner Steve Shortland, in charge of reviewing the Brash file.

MPs and parliamentary staffers are expected to be interviewed as well. It is understood the Independent Police Conduct Authority is also investigating after a complaint from Dr Brash.

I’m not sure whether the investigation will reach any conclusions, as the theft happened around four years ago, but it is pleasing to see they are at least trying.

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What the Police should have done

July 8th, 2009 at 1:00 pm by David Farrar

The Police Complaints Authority is investigating the adequacy of the Police investigation into the Don Brash e-mails. As far as one can tell from the released file, the Police did nothing beyond chatting to half a dozen people.

From what I can tell, there was no forensic examination of the evidence – something that should have been the first step taken by the Police. What do I mean by this – I mean an investigation of what actual documents Nicky Hager gained a copy of.

Hager helpfully supplied around 1,000 references in his 350 page book. The very first step of a semi-competent investigation would be to examine the documents referenced. Here is what I would have done:

  1. Compile a masterlist of every document referenced in Hager’s book
  2. Sort them into groups – e-mails, faxes, etc
  3. For the e-mails record down when each e-mail was received, and when it was deleted if it was. This will provide a window of time as to when the theft occured.
  4. Also for each e-mail record who has access to it. Who was cc’d or bcc’d it. Who had access to a printed copy.
  5. Look for common patterns in access, to try and narrow down which e-mail account or accounts were probably accessed
  6. Look at the date of the final document used in the book. It is likely the theft took place soon after that.
  7. Obtain staff lists for National during that period. Look especially at anyone who joined just before the thefts occurred.
  8. Obtain swipe card records for the Leader’s Office for the period just after the final documents cited.

I’m not saying this would work out who did it. I’m saying this is the minimum first steps you would expect in a competent investigation – work out what documents were stolen, work out who had access to them, work out whether they were in electronic form or also existed in hard copy, and work out when they were probably stolen. This is basic stuff.

By failing to do this the investigation was, in my opinion, doomed to fail, Asking half a dozen people whether or not they will tell them who gave them the e-mails was never going to find anything. A proper detailed forensic approach to the investigation could well have led somewhere, or even provided clarity as to whether the theft came about from a one off access to someone’s inbox, or whether it was more systematic than that.

I am going to be very interested in the report and findings of the Police Complaints Authority.

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Hopefully the final chapter in the Wallace shooting

March 18th, 2009 at 8:13 am by David Farrar

I have always been amazed that there has been any controversy over the shooting of Steven Wallace. I’ve criticised the cops on many occasions, but not for shooting a guy who is trying to kill them.  If armed cops tell you to drop your baseball bat, and you not only refuse but you keep advancing on the officer proclaiming you are going to kill him – well I call it suicide by cop. He even continued to advance after they fired a warning shot .

Anyway the Independent Police Conduct Authority has spent almost a year doing a full review of what happened. This is the new IPCA which doesn’t just review internal police investigations but has the resources to independtly investigate.

The Herald reports on their conclusions:

  • Steven Wallace engaged in a “lengthy and violent rampage” through Waitara armed with a baseball bat and golf club, “borne of an unexplained rage, which showed no signs of abating”.
  • Constable Keith Abbott was justified in arming himself and using the gun within the law and police procedures.
  • Mr Wallace had a history of violence.
  • Constable Abbott had no other option available to him.
  • No evidence supported rumours that Constable Abbott had been drinking at two social functions before the shooting.
  • The lack of communication between Constables Abbott and Dombroski reflected the urgency of the situation they faced.
  • Police should have done more for Mr Wallace after the shooting, when they refused to give him first aid and did not put a blanket offered by a witness over him. But even if first aid was provided it would not have saved his life.

The IPCA make it very clear that Wallace was not killed for breaking windows:

“Steven Wallace was shot, not because he had broken windows, or because he was resisting or escaping from arrest, but because Senior Constable Abbott had reasonable grounds to fear for his own life and for that of Constable Dombroski,” said Authority Chair Justice Lowell Goddard.

The full report is a 45 page pdf. I suggest people read it – it is very thorough. Fo those who think Wallace was just breaking some windows in a deserted area of town and no threat to anyone:

Steven then stopped on the corner of McLean Street and Domett Street, where he got out of his vehicle and began to smash glass panes in the surrounding buildings. As the taxi passed, after having dropped off its passenger, he crossed the road swinging a baseball bat and smashed the driver’s window as it drove past, giving the taxi driver the impression that he was aiming for the windscreen.

On two occasions, Steven also moved aggressively towards a car containing some young people who knew him. The driver left in a hurry each time.

At some stage, Steven also drove at high speed directly towards a security guard on a bicycle. The guard feared for his life and went immediately to the petrol station to report the incident.

The whole notion that the Police should have just left him alone to smash windows is farcical.  And when the Police did turn up:

Raising the club in both hands, he used it to smash the windscreen directly in front of Constable Herbert’s face. As she attempted to reverse away, Steven pulled the head of the golf club out of the broken windscreen and launched a second attack on the Police car, this time smashing a side window.

There is a world of difference between smashing a shop window, and smashing the windscreen of a car a police officer is sitting in. And at the scene:

Constable Dombroski’s evidence was that, after the warning shot had been fired, Steven Wallace appeared even more determined to get to Senior Constable Abbott, saying “You fucking arsehole, I’m going to kill you”.

Constable Dombroski said he did not fire any shots himself. However, believing that Steven intended to kill Senior Constable Abbott, he was preparing to shoot when Senior Constable Abbott fired at Steven.

I can’t think of how anyone can dispute the justification for shooting. Wallace is advancing on armed police, he has ignored a warning shot, he is closing the gap despite the Police retreating (he would be alive if he had stopped advancing on them), he is telling the Police he is going to kill them, and he has a weapon which would allow him to quite easily do so.

Constable Abbott has now been cleared by a police inquiry, a private prosecution, by the coroner and by the IPCA. Despite this the family remain hell bent on vengeance. For their own sake they should let go.

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