Selwyn loses

Tim Selwyn has lost his appeal against his sedition conviction. While the Court of Appeal agreed that the judge had misdirected the jury, it believed that no miscarriage of justice had occured, and that the pamphlets "could not be construed in any other way than as an expression of seditious intention". There's no suggestion that the affirmation of freedom of speech in the BORA was considered or even argued - but that may have been rendered impossible by Selwyn opting for a jury trial.

I'll post a link to the judgement if it becomes available online.

Sedition: the cost of prosecution

How much did it cost to prosecute Tim Selwyn for sedition? I tried to find out last year, but received only glib bullshit in reply. Now, finally, a followup request has revealed an answer: $4566:

I can advise that approximately 60 hours were spent by Police on depositions and hearings in the district court at a cost of $76.10 per hour. This cost per hour for Police time takes into account costs incurred in investigating and prosecuting any person.

Whether this figure includes the true costs of the investigation - the hours of police time spent following up leads, the time of the prosecutors preparing the case, the cost of forensic examination of the leaflets and Selwyn's computer - is an open question. But its at least a start, and more informative than the police's initial response.

As for why this took so long, it seems the police dispatched the answer in late August last year, but it mysteriously never arrived; they were able to dig it up when I sent in a new request last month.

Rudman on sedition

The Herald's Brian Rudman responds to the sentencing of Tim Selwyn with a call for people to speak up and scrap the old sedition law:

The jailing of Tim Selwyn for sedition should send a shiver up the spine of anyone whose business is words and ideas. And in a free and open democracy, that's every one of us.

That the police, off their own bat, can prosecute a pamphleteer for sedition, persuading a jury that the Government was in danger of being overthrown unlawfully as a result of his scribblings, drags us into the same class as "guided" democracies such as Singapore.

Rudman points out that statements as seditious as Selwyn's were made on an almost daily basis during recent periods of civil protest (the 60's, the Maori sovereignty movement, the Springbok Tour, nuclear-ship visits, gay rights, women's rights) - and yet none resulted in prosecution, much less the unalwful overthrow of the government. Reviving the law then seems both totally unjustified, and a threat to the greatly enhanced freedom of speech we have won since the 60's. If they could manage without it during the height of the Springbok Tour ("the closest [modern] New Zealand has come to civil war"), then surely we can manage without it now.

Rudman concludes:

Compared with the sixties, we now live in a golden age of free speech and free expression. Who of us would want to go back? The conviction and jailing of someone for exercising this new openness are chilling reminders of those bad old days. The quicker the sedition law is repealed the better.

Obviously, I agree.

Selwyn sentenced

Tim Selwyn has been sentenced to two months in prison for sedition and for his role in an axe attack on the Prime Minister's electorate office. He was sentenced to a further 15 months on unrelated fraud charges.

I've already said that the sedition prosecution and verdict (as opposed to the willful damage one) was shameful and an outrage against freedom of speech, and I stand by it. Selwyn should have been - and was - prosecuted for sticking the axe through the window. But he should never have been prosecuted for the pamphlets. While they called for "like-minded New Zealanders to take similar action of their own", this falls far short of the "yelling 'fire' in a crowded theatre" standard which should prevail in a democratic society. They also fell far short of actual incitement, and it is telling that the police chose to resurrect the archiac crime of sedition, with its broad language criminalising not just incitement, but also encouragement of "violence, lawlessness, or disorder", rather than the crime they were indirectly accusing Selwyn of: inciting criminal damage.

The worry now is that the police will use this law to crack down on "non-mainstream" political speech, exactly as they have done in the past. The only way to prevent that is by repealing the law. Hopefully we'll see some progress on that front soon.

Updated: Somehow, I managed to leave the bottom off this when I posted it.

Sedition on the internet!

NewstalkZB has noticed that Tim Selwyn has republished the text of his seditious leaflet on his blog. Shock! Horror! But in fact this isn't news at all. The leaflet has been available online pretty much since the day it was released. Scoop published it the next day, as did the Herald, and I've had it up as part of my Sedition by Example series since March last year, and it was posted at Dog Biting Men around the same time. Not even Selwyn's post is new; he originally republished it in May last year, and this is a republication of a republication.

If Selwyn is "in further trouble" for this, then so are a lot of other people. But I forget: words are only seditious if uttered or published by the wrong people. That's certainly the lesson of the C.O.B. Davis case, and it looks to be true here as well.

Sedition on Nine to Noon

Nine to Noon had a discussion of yesterday's sedition verdict this morning, featuring Ursula Cheer of the University of Canterbury and Barry Wilson of the Auckland Council for Civil Liberties. Both criticised the law for being overly broad, and noted that a lot of what we would regard as legitimate protest and genuine political speech is covered by it. Cheer gave an overview of the history of the law and how it tended to be used in times of social disorder - though it was noted that ordinary public order laws were considered sufficient to deal with the disorder surrounding the 1981 Springbok Tour - a case where sedition laws would seem to be far more applicable. If sedition was not needed then, then it can hardly be argued to be needed now.

Wilson pointed out that America's sedition law (18 USC 115 s2385) is interpreted very strictly to require a "clear and present danger" of immediate violence, which reduces it to effectively a conspiracy charge and provides far greater protection of free speech that our law. He also mentioned the cases of Annette Sykes (which I've been meaning to blog about for some time) and Ormond Burton, who was imprisoned in 1942 for making an appeal to pacifism. While the latter was an attack on free speech, strictly speaking it wasn't sedition, as IIRC the charge related to interfering with the war effort and discouraging recruiting, rather than exciting disaffection or inciting lawlessness (the same applies to the case of James Kellman).

There was some discussion of the Bill of Rights Act and the prospects for an appeal, as well as the possibility of the Law Commission reviewing the law. The latter is long overdue, but I'd rather go for straight repeal. As Cheer said, there are plenty of offences which already cover incitement to violence, and it would be better to use them rather than risk criminalising genuine political speech.

The most amusing bit was when Cheer was asked whether others were committing offences under the Act - "people on blogs, for example". Nice to see that we're viewed as a hotbed of sedition by the responsible media...

Sedition roundup

Media reaction to the conviction of Tim Selwyn for sedition:

• TVNZ: Still a place for sedition charges
• NestalkZB: Extraordinary verdict in sedition case
• The Age: NZ axe thrower found guilty of sedition charge
• New Zealand Herald; Sedition verdict 'harms free speech'
• Dominion-Post: Axe flier ruled seditious
• NewstalkZB: Outrage over verdicts
• Radio New Zealand: Sedition verdict

There have also been blog posts at DPF, Not PC, Capitalism Bad, Tree Pretty, Oh Crikey!, Holden Republic, NZBC, and Liberty Scott. The latter raises the quite reasonable question of where the usual voices of liberalism within the political parties are on this. The Labour Party, who were once victims of this unjust law? Silent. National? Silent. ACT, who proudly proclaim themselves to be "the liberal party"? Silent. The Greens, usually a reliable voice on civil liberties issues? Silent. And of course nothing from the Progressives or Maori Party either. This is a serious civil liberties issue which threatens the freedom of speech of everyone in New Zealand - and our supposed representatives in Parliament refuse to say a word. Thanks, guys.

There was also a fairly long discussion on Nine to Noon this morning, which I'll blog about when the audio is up.

A shameful verdict

Tim Selwyn has been found guilty of sedition. This is a shameful verdict, and a major step backwards for freedom of speech in this country. Punishing people for their words and intentions rather than their actions should require meeting a very high threshold, and one which our sedition law, with its vague references to "violence, disorder, and lawlessness" simply does not come close to. While superficially covering incitements to riot and such, historically this law has been used to cover such "incitements" as encouraging civil disobediance of unjust laws (for example, those relating to conscription, or Depression-era unemployment taxes), encouraging political opposition to government policy (for example, of Depression-era welfare policies which discriminated against unmarried workers), and selling or publishing communist literature which advocated global revolution and an end to capitalism at some undefined point in the future.

Directly inciting a riot may be "yelling 'fire' in a crowded theatre" - but none of this is. And neither were Selwyn's pamphlets. While encouraging "like-minded New Zealanders to take similar action of their own", no specific crime is being incited. Instead, it's just a strongly-worded call to action - and it should be protected as such.

By finding Selwyn guilty, the jury have effectively revived sedition in New Zealand, and opened the door to further prosecutions for what is effectively a political crime. And that is not something any of us should welcome.

I've been told that Selwyn will likely appeal to the High Court on BORA grounds, and we just have to hope he succeeds.

The jury is out

The jury has retired in the Selwyn sedition case.

Juries have historically been "unreliable" in sedition cases - which is why most prosecutions were carried out under the War Regulations Continuance Act 1920, which allowed summary conviction by a magistrate. We just have to hope that this jury follows the trend...

Today's sedition coverage

Today's coverage of the Selwyn sedition trial:

• NewstalkZB: Black Power links to sedition case
• NewstalkZB: Man facing sedition charges
• Radio New Zealand: Man accused of sedition admits to seeking gang help
• Radio New Zealand: Checkpoint: Sedition
• Dominion-Post: Axe attacker to take stand in sedition case
• New Zealand Herald: Sedition trial starts into axe attack on PM's office
• TVNZ: Sedition accused sought gang help (with bonus factual errors!)

I'm surprised that he sought help from Black Power, but then I've thought from the beginning that Selwyn was a dick (a point more or less proven by his axe through the window stunt). Not that that changes anything - not even dicks should be facing sedition charges.

Meanwhile, according to my sources the trial is almost over - evidence was finished today, which means closing statements tomorrow, and maybe a verdict by tomorrow evening.

More sedition coverage

Both Stuff and the Herald have reports on the first day of the Selwyn sedition trial - which seems mostly to have been about the axe attack and establishing authorship of the pamphlets - things Selwyn has already admitted. The trial seems to be going quite quickly; the defence will open today, and last night's report on Checkpoint [audio] suggested that it will be over by the end of the week (rather than taking eight days, as initially expected).

Meanwhile, googling for news on sedition makes it clear just what sort of dubious company we are now keeping. The search also turns up an AllAfrica.com piece on Amnesty International's latest report into human rights violations in Zambia, which includes this bit:

On 24 July, opposition leader Michael Sata was arrested and charged with sedition and espionage after supporting striking mineworkers.

Which I think shows exactly what this sort of law is used for, and why we should repeal it immediately.

Sedition coverage and history

Some links to coverage of the Tim Selwyn sedition trial:

• Monsters & Critics: New Zealander tried on sedition charges
• Radio New Zealand: Auckland man denies sedition charges
• NewstalkZB: Jury sworn in at Selwyn trial
• TVNZ: Man in court on sedition charges
• LibertariaNZ: Sedition Case An Assault on Free Speech
• Radio New Zealand: Checkpoint; Sedition Case [Audio]
• Wikinews: Sedition trial underway in Auckland, New Zealand

There's a lot of disagreement between the sources over when such charges were last laid. NewstalkZB says it has been 30 years, while Monsters & Critics says the last "seditious conspiracy" charge was laid in 1908, which is simply wrong (I don't even know of a prosecution that year, though I'm happy to be corrected). The question really depends on what you count as "sedition". Historically, we've had four laws containing sedition-style provisions:

• The common law inherited from the UK;
• The Crimes Act in its various incarnations;
• the War Regulations of 20th September 1915, extended under the War Regulations Continuance Act 1920. These extended the Crimes Act definition of sedition to include discouraging recruiting, and more importantly, allowed summary conviction by a Magistrate rather than requiring a jury trial;
• The Police Offences Act in its various incarnations, which contained a provision criminalising inciting, procuring, or encouraging "violence, lawlessness, or disorder".

AFAIK, the last prosecution under the common law was that of Te Whiti and Tohu, the leaders of Parihaka, in 1881. The last prosecution under the Police Offences Act provision was that of Police v Lee in 1973 (Lee was acquitted on appeal, the judge ruling that "inciting violence, lawlessness, or disorder" meant something more than telling people to sit down and block a road). The last prosecution under the Crimes Act was probably Bishop James Liston in 1922. The last prosecution under the War Regulations Continuance Act was probably that of Police v Marshall and Others in 1929, in which a group of communists were prosecuted for distributing books calling for the destruction of capitalism. I've gone for 75 years based on this last prosecution, but it may be wrong; in his paper on reform of the Crimes Act, Geoffrey Palmer noted that

Justice Department statistics reveal that two cases involving sedition were tried summarily in 1967 and resulted in convictions. No other records of these minor cases have been found.

I'd love to find out more about these cases, but I don't know where to start looking yet.

Update: Added the press release from the Libz (the only political party to make a noise about this important freedom of speech issue), the Wikinews piece, and the Checkpoint segment.

A step backwards for freedom of speech

Tomorrow we will see a remarkable step backwards for freedom of speech in this country. Tim Selwyn - an Auckland freelance writer - will go on trial in the Auckland District Court on sedition charges relating to flyers left at the scene of an axe attack on the Prime Minister's electorate office in 2004. This will be the first prosecution for sedition in this country for at least 75 years.

Selwyn is charged with "seditious conspiracy" and "making a seditious statement". Both charges revolve around the concept of a "seditious intention" - defined in New Zealand law as an intention to "bring into hatred or contempt, or to excite disaffection against" the Queen or the government, to "incite... or encourage violence, lawlessness, or disorder" or any offence that is "prejudicial to the public safety", to incite "hostility or ill will" between different classes or groups of people, or to incite the public to bring about constitutional change by unlawful means. Numerous legal commentators, including Sir Kenneth Keith and the great British constitutionalist Albert Venn Dicey, have noted that this definition is so broad as to criminalise virtually any criticism of the government. And historically, that is exactly how the law of sedition has been used in this country: as a tool of persecution for those whose political opinions were deemed "non-mainstream".

The Maori leaders Te Whiti and Tohu were detained - but never tried - on sedition charges following the sack of Parihaka. Later, the Maori prophet Rua Kenana was prosecuted for supposed disloyalty to Britain. Various Irish leaders were also prosecuted for speaking out against Britain's persecution of the Irish - including Bishop James Liston of Auckland, who was prosecuted in 1922 after criticising British atrocities during a St Patrick's Day speech. The Samoan independence leader Olaf Frederick Nelson was also prosecuted for daring to suggest that Samoans could run their own country. But the primary targets were members of the labour movement - and later the Labour Party. Future Labour leader Harry Holland was prosecuted and jailed for a speech he gave during the Great Strike of 1913 - as were unionists Edward Hunter and Tom Barker. Later, during WWI, future Prime Minister Peter Fraser, and future cabinet ministers Bob Semple, Tim Armstrong, and future Labour MP James Thorn were all jailed for speaking out against the government's policy of conscription. One - Paddy Webb - was even an MP at the time; he was jailed for speaking out on the issue during a local body election campaign in his electorate.

It is supremely ironic then that the political heirs of those persecuted and victimised under this law - the Labour Party - are now using it to persecute and victimise someone who has spoken out against them. For that is what Selwyn is being prosecuted for: speaking out. The actual act of attacking the electorate office with an axe has been dealt with under a charge of "conspiracy to commit criminal damage", to which Selwyn has already pleaded guilty. The sedition charges relate solely to his words, not his actions.

What of those words? Aren't they an incitement to violence? The best response to this comes from US Supreme Court Justice Oliver Wendell Holmes in his famous dissent in Gitlow v. People. Holmes pointed out the simple truth that

Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result.

In a free society which affirmed the right to freedom of speech, Holmes believed that only speech which attempted to induce immediate and concrete action (on the level of yelling "fire" in a crowded theatre) could be prosecuted. Anything which fell short of this - for example, urging the violent overthrow of government at some indefinite time in the future - was protected. Selwyn's flyers clearly fall into the latter category. Unfortunately, New Zealand law does not have any similar provision to that eventually established by Holmes, and he is facing up to two year's jail for them.

I'll leave the final words to former Prime Minister Sir Geoffry Palmer. In a 1989 paper discussing proposed reforms to the Crimes Act, Palmer pointed out that speech which poses a threat to public order can be prosecuted under existing laws relating to incitement, and that the only role of the law was to criminalise criticism of the government. This, he felt,

...should not be a crime in a democratic society committed to free speech. Libelling the government must be permitted in a free society.

I agree wholeheartedly. This law is an archaic holdover from feudalism which should have been relegated to the dustbin of history long ago. Its revival to prosecute those encouraging opposition to government policy is not just an outrage - it is a significant step backwards for freedom of speech in this country.

Update: Corrected spelling.

Selwyn Pleads

Tim Selwyn has plead guilty to a charge of "conspiracy to commit criminal damage" relating to the axe-attack on the Prime Minister's electorate office last year. He will be sentenced next month. However, he is still contesting the sedition charges relating to the pamphlets found near the scene of the attack.

This at least makes it a nice, clear-cut freedom of speech issue: should the government be able to restrict speech that is highly critical of it (and even advocates violence), or not? And IMHO, it is a fight Selwyn can win. In the wake of the flag-burning decision, I can't imagine the sedition law not being similarly "read down".

Of course, I'd rather the government repealed the whole thing. But maybe we'll have to wait for Selwyn to win in court for that to happen.

More answers

A couple of months ago, I used the Official Information Act to inquire about the prosecution of Tim Selwyn for sedition. The answers I received were less than satisfactory, so I sent a followup request for

a list of all communications and advice between the police and other agencies (such as, but not limited to, the Crown law Office, or government Ministers) regarding the prosecution of Mr Selwyn.

The request specifically noted that I was seeking information regarding the existence of information, which would not be covered by either by privilege. The focus was on outside agencies to avoid information covered under the Police Act (which covers only internal police communications)

Last week - ten working days late - I received the following reply:

As part of the Prosecution of Mr SELWYN, the Police have dealt with the following outside agencies;

• Telecom
• Vodafone

The contact with the above agences and content thereafter is now before the District Court, and therefore withheld under the provisions of Section 6(c) of the Official Information Act 1982.

I'm a little dubious about the accuracy of this response; at the minimum I would expect both Mr Selwyn's lawyers and the Department of the Courts - or alternatively, the Crown Law Office - to appear on the list. I'm sure its an oversight, but it still calls into question the Police's compliance with the Act. My request for clarification will be on its way shortly...

Sedition in the news II

It looks like Ben Thomas of Dog Biting Men has been having fun; today he was outside the Auckland District Court protesting the sedition charges against Tim Selwyn:

The protest was small and low-key, and one of those involved, Ben Thomas, said the aim was to "show the hypocrisy of New Zealand's outdated sedition laws".

Mr Thomas said the fact that he was not arrested called into question why Selwyn was facing the sedition counts.

Well, it does and it doesn't. On the one hand, subsequent distribution for the purpose of public discussion is almost certainly covered by the "good faith" defence. And on the other hand, if the material is so vile and dangerous as to be worth prosecuting over, then surely it doesn't matter whether you are the first to distribute it or the second? It's yet another way in which our sedition laws and their enforcement simply do not make sense...

Sedition in the news

Today's Herald piece on "President Clark" has this little bit about the Tim Selwyn case:

More seriously, there are issues about to how the police play out their role in relation to the Prime Minister, and that of other citizens, particularly the judiciary.

Take the charge of "seditious conspiracy" which police filed against Timothy Selwyn, the activist who put an axe through Clark's Auckland electorate office. The charge - which basically means orchestrating a "rebellion against the state" through exciting disaffection against the Government - has not been laid since the early 1900s.

Police said Selwyn's attack was a pakeha protest at the Government's attempts to steal Maori land through legislation.

But constitutional lawyers believe the police may have over-egged the situation.

They say Selwyn could have a strong defence of free speech under the Bill of Rights Act.

The implication being that the sedition charges are the result of the police's desperation to please the PM. This is probably correct, though as long as police records of the case remain secret, we'll never know for sure.

Protesting sedition

Further to the Tim Selwyn case: Ben Thomas of DogBitingMen has organised a protest against the use of sedition charges. From midday today, they will be outside the Auckland District Court handing out seditious material in an effort to show that the law is an ass. Technically, this is "exciting contempt for the administration of justice", and so seditious in itself - but then, this simply reinforces Dicey's point that if applied consistently, the law of sedition would criminalise most forms of political agitation.

I'd be there, but I don't live in Auckland...

Sedition by Example X: Tim Selwyn

(An ongoing attempt to procure the alteration of our archaic law of sedition)

Text of a pamphlet left near the scene of the axe-attack on the Prime Minister's electorate office:

Confiscation Day

This morning concerned Pakeha vented their anger and disgust at the Government’s attempts to steal, by confiscation, Maori land in the form of the Seabed and Foreshore Bill that is currently being disgracefully rammed through Parliament as part of a desperate back-room deal.

By attacking the electorate office of the chief instigator, the Prime Minister - who is due to abandon the mess she created by fleeing the country today - we signal that a threshold has been crossed.

The broken glass symbolises the broken faith, broken trust and shattered justice, our axe symbolises the steadfastness of our determination.

The ruthless Prime Minister will leave behind a vindictive law that will haunt this nation should the M.Ps be mad enough to pass it. Maori M.Ps complicit in this farce will never live down their betrayal.

If this is destined to be Confiscation Day, then we have marked it.

We call upon all like-minded New Zealanders to take similar action of their own to send a clear message that such a gross, blatantly racist injustice to the Maori people will never be accepted.

Ake! Ake! Ake!

The alleged author of this document, Tim Selwyn, has been charged with seditious conspiracy and making a seditious statement for inciting "violence, lawlessness, or disorder". These charges rest not on his alleged involvement in the attack itself - that is covered by a seperate charge of conspiracy to commit criminal damage - but on the above words alone. He will appear in court today for a pre-depositions hearing - 83 years to the day of Bishop Liston's infamous speech.

Answers

A couple of weeks ago I sent away an Official Information Act request to the Minister of Police regarding the sedition charges laid against Tim Selwyn. I was seeking information on who had decided to lay the charges (and their rank and job description) and whether it was normal for a decision to charge to be made by someone in their position, as well as any communications or advice they had received on the issue. But rather than the usual written response, I received a phone call, in which the police demanded to know the reason for my inquiry (no reason need be given under the Act), and expressed their reluctance to release information lest it be misused by "the criminal element". Subsequently, I was able to gain the following information:

• Mr Selwyn's words are considered to express a seditious intention as they "incite, procure, or encourage violence, lawlessness, or disorder". According to Selwyn, this is on the basis of the phrase "We call upon all like-minded New Zealanders to take similar action of their own to send a clear message..."
• The charges were laid by the officer in charge of the investigation, who is an Acting Detective Senior Sergeant of the Auckland CIB
• It is quite normal for decisions to charge to be made by people of that rank and in that position (in other words, there was no political pressure)

My request for any communications or advice received on the matter was denied under s 9(g)(i) of the Act, which protects

The free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation or officers and employees of any Department or organisation in the course of their duty

and s 61A of the Police Act 1958, which protects the confidentiality of internal police documents.

I will now be lodging a request for a list of documents and communications, on the grounds that information regarding the existence of information (and in particular, communications with agencies outside the police - such as the Crown Law Office or any government Ministry) is not protected under either Act.