A couple of weeks ago, I blogged about the Kaitaia Shoplifter Trespass Notice Scheme, and mentioned that I was trying to obtain further information on it using the Official Information Act. Unfortunately, I've been scooped - Dean Knight has beaten me to it, and posted the Solicitor-General's legal advice [PDF] to his blog. As previously mentioned, it argues strongly that police participation in the scheme would be an abuse of power:
While crime prevention is certainly a "legitimate purpose" of the Police, to undertake a scheme in joint venture with the business community having the effect of banning the apprehended person from over 150 retail outlets in case they were to repeat their offending would inevitably be seen as excessive and out of proportion to the risk of further offending by those involved. What is being done by the Police is excessive both in its scope and effect.
While it doesn't delve into the BORA arguments (their being unnecessary given the previous finding), it does note the possibility of a challenge under the s26 ban on "double jeopardy", and that
[s]uch persons as had been convicted might well persuade the Court that the scheme simply represented further punishment wrongly applied by the Police in circumstances where the Courts had already punished them.
As for the application to Rotorua, if banning shoplifters from 150 shops in Kaitaia is excessive and an abuse of power, then banning them from every shop or building in central Rotorua certainly is. The "double jeopardy" argument also holds. While the police and Rotorua District Council would obviously argue that a trespass notice is a civil penalty rather than a criminal one, given its significant effect on everyday liberty (and effective exile from the centre of the town you live in is a significant effect), it is difficult to view it as anything else (and those that do are, bluntly, missing the forest for the trees). The police could avoid this risk by not pursuing charges against anyone they issued a notice to, but then they would be effectively punishing without trial. While that may be acceptable to an authoritarian Area Commander with an admiration for Tony Blair and ASBOs, it is certainly not acceptable in a free and democratic society.