The HRC destroys its mana

Six years ago, black-clad police stormtroopers blockaded and searched the village of Ruatoki as part of Operation 8. The raid, and the investigation that led to it, was a massive human rights violation - both of the ordinary people of Ruatoki, who were detained, photographed and searched illegally, and of some of the suspects, who later won court cases against intrusive and illegal surveillance. The Independent Police Conduct Authority later found that the police's treatment of civilians was "unlawful, unjustified and unreasonable".

But people didn't just complain to the IPCA - they also complained to the Human Rights Commission. As the pre-eminent human rights body in New Zealand, you'd expect the HRC to have something to say about the abuse of anti-terror legislation, unlawful searches and the terrorisation of a community by police. But they didn't. Now, after having stayed silent for six years, they've finally released their "analysis" of the raids. Given the timing - the week before xmas, when the holiday silly season has started, you'd think they were embarrassed about its contents. And you'd be right. Because what we have here isn't an "analysis" - that would require that it drew conclusions. It doesn't. Instead we've got a statement of the law (as it stood in 2007) around terrorism, roadblocks and searches, with no effort made to apply it to the facts.

Partly this seems to be because they simply outsourced much of their work to the IPCA. But in other areas, not addressed by the IPCA report, its because they simply couldn't be bothered. One of the core complaints was that the police would never have treated a Pakeha community the way they treated Ruatoki. So was the police's behaviour discriminatory or not? The Human Rights Commission refuses to say. They talk about the law around discrimination, but not whether it applies in this case. Ditto on whether the rights of children were violated. As for the highly contentious issue of the use of the Terrorism Suppression Act 2002 to gain interception warrants against political activists when terrorism charges were later dropped (engaging the rights to freedom of expression and association as well as against unreasonable search and seizure), the Commission remains silent. The most they will say is that

the nebulous terminology in the terrorism suppression Act increases the possibility that it could be misused.

No shit, Sherlock. But as a human rights body, shouldn't you be having a bit more to say about that? I mean, its only our political freedoms on the line here.

Overall, this report is an embarrassment to the Commission which has eroded its mana and its credibility. And the message is clear: we can't look to them to defend the human rights of individuals against the state, even in egregious cases like Operation 8.

Unlawful, unjustified and unreasonable

On October 15 2007, the New Zealand Police conducted a series of "anti-terrorist raids" around the country. In the Bay of Plenty town of Ruatoki they terrorised the community, with armed police conducting searches and searching every vehicle going in and out. Effectively, they acted like an army of occupation invading a hostile area. Now, six years on, the Independent police Conduct Authority has found that their actions were "unlawful, unjustified and unreasonable":

Independent Police Conduct Authority Chair Judge Sir David Carruthers said today that the decision by the then Commissioner of Police to undertake the operation in Ruatoki Valley and elsewhere on 15 October 2007 was reasonable and justified.

“However, the road blocks established by Police at Ruatoki and Taneatua were unlawful, unjustified and unreasonable. While Police were warranted in taking steps to address possible risk to public safety there was no justification for believing there was a general threat to the people of Ruatoki.

“Police had no legal basis for stopping and searching vehicles or photographing drivers or passengers,” he said.

In addition police unlawfully detained and searched other residents at properties where they were executing search warrants.

All of this raises the question of whether police will personally apologise to and compensate those whose rights they systematically violated, and whether the officers responsible will be disciplined or sacked. Sadly, the police seem to be in their usual mode of denying they did anything wrong, so that seems unlikely. Their refusal to do so can only continue to undermine the reputation of the police as an institution, and the willingness of the public to cooperate with them - just as it continues to do so over Arthur Allen Thomas.

I'm also left with a question: the IPCA has found that police illegally photographed people at roadblocks (something the police are in denial over). Has that illegally gathered information been destroyed, or has it been databased somewhere, allowing the police to continue to benefit from the fruits of their crime?

(The full report is here [PDF])

A vital question

We know now that the GCSB illegally spied on Kim Dotcom, intercepting his communications in violation of a clear prohibition in law. And we now know that he wasn't the only victim - they illegally spied on another 88 people over the past decade, almost all of them at the behest of the SIS. But there's one question we really need to know the answer to, given what has happened in this country recently: were Tame iti, Urs Signer, Valerie Morse, and the rest of the Urewera 18 among their victims? Some of them at least want to know:

"We have no confidence that the Prime Minister, the Inspector-General or the Director of the GCSB is telling the full story of the illegal spying by the GCSB. We demand to know unequivocally if we have been spied on - either in relation to the Urewera case, or in relation to our political activity - by the GCSB. Nothing short of full disclosure of those spied upon will suffice," says Valerie Morse, one of the initial accused in the 'Urewera case'.

Its an important question, and one which needs to be answered. If evidence gathered illegally by GCSB was used in the trial (and remember, the Police attempted to lie about that in the Dotcom case), then the resulting convictions are tainted and cannot be considered safe.

John Key has assured us that there have been no arrests and prosecutions as a result of the illegal spying. Of course, he also assured us that there hadn't been any more illegal spying, so I think we can take that with the grain of salt it deserves. The only way we are going to get to the bottom of this is through a full, independent public inquiry.

"Dangerous terrorists"

When the government descended on Ruatoki, Auckland and Wellington on the morning of October 15 2007, they justified their enormous use of force - 300 armed offenders squad members - with the claim that they were arresting dangerous terrorists. As the years dragged on and charges were dropped or rejected by a jury, that claim became more and more untenable. And now, with the sentencing of Urs Signer and Emily Bailey, we get to see just how laughable they were.

Signer and Bailey were sentenced to nine months home detention. To point out the obvious, that's not the sort of sentence you give to "dangerous terrorists" who seriously plotted to overthrow the state and wage war against their fellow citizens.

So what have the police got at the end of it all? After five years, unknown operational costs, and at least $4 million in legal costs (with appeals still pending), they have two people in prison on highly-appealable sentences, and two on home detention. That doesn't seem like very good value for money to me. If the government wants savings, then cutting the police body which dreamed up and pursued this case would seem to be the first place to start - because all they do is piss away taxpayer's money on deranged fantasies.

Appealed

Tame Iti is appealing both his conviction and sentence from the Urewera 4 trial.

That's not surprising. Justice Hansen's sentencing comments [PDF] made it clear that the judge was substituting his own opinion for that of the jury, and sentencing Iti for a crime he had not been convicted of - in the process turning him into a martyr like Rua Kenana. The conviction will be harder to overturn - but being able to test it is part and parcel of having a robust justice system.

So, this is going to go on for a while longer, it seems.

Sentenced

Two of the Urewera 4 have been sentenced - Tame Iti and Te Rangikaiwhiria Kemara to two and a half years' imprisonment. Urs Signer and Emily Bailey's sentencing has been adjourned pending a hearing on home detention, but the signal is that they will get something on the order of six months.

The fact that the obviously Maori defendants have received the harshest sentences, despite being convicted on identical charges to Bailey, is I'm sure pure coincidence. Or maybe I've just missed the part of the Sentencing Act where it says that brown skin moko is an aggravating factor.

Meanwhile, the judge in his sentencing comments said that "A private militia was being established". Which suggests strongly that the defendants are being sentenced for a crime they were not convicted of. The jury rejected these fantasies; the judge should do likewise.

There will no doubt be an appeal. In the meantime, the obvious discrepancy in the sentences, and apparent punishment for an unproven crime will undermine the perceived fairness of the sentences, and of the justice system itself.

Update: Yes, Bailey is Maori. At the same time, there's a pretty obvious difference in appearance here, and its one which plays to common prejudices. I've corected the post to make it clearer where I think the problem lies.

No retrial

So, Crown Law has finally admitted defeat and announced that it will not be seeking a retrial for the Urewera Four on "organised criminal group" charges. Good. Those charges were fundamentally a stand-in for the terrorism charges the crown couldn't lay in the first place, and they were as absurd as they were offensive. The defendants have been duly convicted of what they actually did - messing around with guns and molotov cocktails - and will be sentenced appropriately. A retrial would have served no purpose other than to defend police pride (which is not worth wasting a single dollar on).

And now that this is over, perhaps we can move on to the very real problems with the New Zealand Police exposed by this debacle. Kicking over an entire community in search of a handful of people. A relaxed (charitably; others would call it downright deceitful) attitude to the need for surveillance warrants. An obsession with spying. There needs to be a formal inquiry, and an apology to those the police victimised. Sadly, given current police attitudes, that looks about as likely as admitting their malfeasance over Arthur Allen Thomas all those years ago.

Value for money?

In the wake of the Urewera 4 verdict, attention is turning to how much the case has cost. The latest estimate? Over $6 million:

Legal aid costs for the Urewera trial are nearing $3 million, with final invoices still to be filed.

When Crown costs are added, the taxpayer will have paid out well over $6m on an unresolved case the New Zealand Law Society describes as the costliest criminal trial in this country's history.

[...]

Not included are police costs for extended surveillance and raids across the country in October 2007.

And those costs will be several million more.

$6 million for a handful of convictions on firearms charges? Doesn't seem like value for money to me.

The verdict

Four and a half years after the initial raids, the jury has finally reached a verdict in the trial or the Urewera Four, finding them guilty of some of the firearms charges, but failing to reach a verdict on the core charge of "participation in a criminal group". On the former, its worth noting that this crime has a reverse onus of proof; once its alleged, and possession is proven, the defendants have to prove themselves innocent. Clearly, they didn't do that to the satisfaction of the jury in all cases, and its not hard to see why. "Bushcraft" is one thing, but training to use guns against people looks very dubious indeed, and something which is hard to see as "lawful or proper" under any circumstances in a peaceful society. Likewise, on at least one of the charges in question - possession of a Molotov cocktail - there seems to be very little scope for there to even be a "lawful and proper" purpose for having one. If you want to do that sort of thing, stick to paintball.

(On the plus side, we can now all look forward to the Police mounting a year-long operation to bust the local Neo-Nazis for their camo-wearing, gun-toting training camps, right? Or is it OK if you're white and have an actual history of murdering people?)

On the organised criminal group charge, its good to see that the government's fantasies of armed rebellion were not believed by the jury. OTOH, their failure to resoundingly reject them means that (fairly or unfairly) Iti, Kemara, Bailey and Signer will be tainted for the rest of their lives. While the government could push for a retrial, that's unlikely to happen; another four and a half year delay will push this well into "undue delay" territory, and see the charges dismissed by the court. So, that's the best resolution we have: the government clearly didn't prove its case. Whether this was worth spending four and a half years and millions of dollars on is left as an exercise for the reader.

We now have a two month wait for sentencing. The maximum sentence for these offences is four years or a $5,000 fine, and the government will be pushing for a harsh sentence on the basis of those unsubstantiated fantasies. We'll just have to see whether the judge buys that, or sentences them for the crimes actually proven, rather than the police's fantasies.

The Urewera trial

Over four years ago, on October 15 2007, police arrested 17 people on terrorism charges after a series of raids in Auckland, Wellington, Ruatoki, and various other locations. The terrorism charges were quickly dropped, as, last year, were all charges against 13 of the defendants. Today, the remaining four defendants - Tame Iti, Emily Bailey, Te Rangikaiwhiria Kemara and Urs Signer - are going on trial for participation in a criminal group and firearms charges.

The most obvious point is that after more than four years of government-induced delay (caused by the prosecution's insistence on using dubious evidence and trying all defendants together and without a jury), the defendant's right to a speedy trial has almost certainly been breached. That right exists for good reason: memories fade, witnesses move on, evidence goes stale. In New Zealand, cases have been tossed after delays of "only" two years. Here, we're looking at twice that. Can you remember the precise details of things you did or conversations you had four years ago? And yet, we're expected to believe that the police can - and that the defendants can in order to challenge any inaccuracies. And that's not really credible.

Secondly, that delay provides an obvious avenue of appeal should a conviction be entered. So this could go on longer even than the three months they are expecting, and finally be settled by the Supreme Court.

Thirdly, the government needs convictions in order to not look like dicks who have wasted millions of dollars of taxpayer's money chasing fantasies. It will (fortunately, finally) be up to a jury whether to get them. If they don't, we should be demanding heads on spikes from the police, from the SIS, and from the politicians responsible.

No majority

ACT has announced its position on National's plans to oust the rule of law and retrospectively validate unlawful police surveillance, saying that they want the bill to go to select committee. So that's that then. The government has no majority for this change, and will not be able to ram it through without public scrutiny.

The question now is what will happen after the select committee. The legal profession, the Human Rights Commission, and likely the courts will all voice serious objections to the proposed retrospective validation (while supporting in principle the right of the police to conduct such surveillance in the future with proper judicial oversight). Hopefully this will mean the retrospective portions of the bill will be removed, and we'll get a quick-fix which is basically unobjectionable. But the government may try to press on anyway, and try and tar other parties as "soft on crime" (rather than "soft on human rights") if they refuse. The question then is whether ACT or Labour will buckle, or whether they will stand up for our constitution in the face of an assault which exceeds anything done by Muldoon.

Labour on rule of law repeal

Labour has finally spoken up about National's plans to oust the rule of law and retrospectively validate unlawful police surveillance, saying they will not support the bill until they have seen it, and they will not support the bill being passed under urgency:

Labour wants a select committee to scrutinise retrospective legislation to allow secret filming on private property by police.

[...]

''The bottom line is it must go through a select committee process,'' Goff said. ''It needs to have expert opinion, we need to have the Law Commission, we need to have the Law Society, the other players in this game, able to comment.''

He added: ''We haven't seen the law yet, we haven't seen the bill, and I'm not going to support anything I haven't seen.''

This is better than I had expected, but it still leaves the door open to support interfering in ongoing criminal trials to support the prosecution. And that is something no party in our Parliament should support.

Update: And more from Charles Chauvel here.

More on rule of law repeal

The government's move to oust the rule of law and retrospectively validate unlawful police surveillance is attracting the expected backlash. Both Andrew Geddis and Dean Knight have excellent pieces explaining why this is so odious. The government isn't just proposing to establish a framework allowing video surveillance in the future (which is OK with proper judicial oversight which balances the intrusiveness of such surveillance against necessity, just as they do for wiretaps) - they're planning to interfere in incomplete criminal trials, changing the rules of evidence in favour of the prosecution so as to secure convictions and protect those which have already been handed down, and do this under all-stages urgency. Grant Illingworth [audio] goes further, saying that it effectively repeals the right to be free of unreasonable search and seizure, a fundamental attack on our constitution.

Of course, the government can only do this if they can get the votes. The bill has already been condemned by the Greens, the Mana and Maori parties, which leaves the government relying on the votes of either ACT or Labour for a majority. In both cases, the move goes against everything the parties stand for, and will not sit well with large portions of their respective support-bases. If these parties hold fast, then the government will not be able to pass this bill, and will be forced to abandon its more odious elements. Sadly, I think one or other of them will betray us.

Pissing on the rule of law

Two weeks ago, the Supreme Court ruled that covert video surveillance evidence against the Urewera 18 was inadmissible, because it had been obtained unlawfully. This was no surprise to the police; they had known that the use of such surveillance was unlawful, but had disgracefully gone ahead and done it anyway. But in the wake of the decision, they whined that the ruling would put other cases at risk. And today, the government gave in to that whining, announcing they would introduce legislation under all-stages urgency to suspend the ruling and retrospectively validate such surveillance.

This is not your usual case justifying all-stages urgency. The police have not been caught by surprise here. They have known for some years, at least since the Law Commission's 2007 report on search and surveillance powers that video surveillance is unlawful. And there's even a bill before Parliament, the Search and Surveillance Bill, which would fix it by providing a framework for such surveillance to be lawful. But the government has sat on that bill for almost a year now, preferring to progress other legislation. Parliament has not been caught by surprise; it has deliberately chosen not to act.

In such circumstances, ramming through a bill under all-stages urgency to retrospectively validate deliberately unlawful behaviour by the Police is a gross assault on the rule of law. The police violated the law, and they should pay the price. If they didn't want to pay that price, then maybe they shouldn't have deliberately conducted unlawful surveillance in the first place.

Update: Updated link. Also, retrospective validation means the police will be able to use the evidence against the Urewera18. So this is actually all-stages urgent legislation to change the outcome of a criminal trial. This is absolutely obscene. We would not accept such behaviour somewhere like Fiji, and we should not accept it here.

Unsuppressed

The Supreme Court judgement in the case of the Urewera 18 has been unsuppressed. Which means I can now tell you that, contrary to the police spin, the searches the police relied upon to gather their evidence were unlawful and known to be so by police at the time. This wasn't just a legal technicality, a failure to fill out the paperwork properly; police trespassed on privately-owned land without search warrants, and conducted video surveillance with no statutory authority to do so. The Chief Justice was absolutely scathing of the police's conduct in the case:

I regard it as a significantly exacerbating factor that the film surveillance was undertaken deliberately without legal authority, in the knowledge that there was no lawful investigatory technique available to be used... In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.

[...]

[T]he breaches of s 21 were not merely technical or inconsequential procedural errors but "flagrant violation of right", deliberately undertaken. The breach of human rights entailed the covert filming of individuals who did not appreciate that they were observed and who were not displaying their behaviour for public observation. Because I take the view that the police filming was unlawful, I consider that rule of law considerations are also engaged.

And she's not the only one. Here's Justice Tipping:

I do not consider there is any escape from the view that the police deliberately breached the appellants’ rights. Detective Sergeant Pascoe acknowledged that he knew there was no legislative authority to install surveillance cameras. This, no doubt, is why he did not seek a warrant to do so. The Detective Sergeant did not profess to have authority from any other source. He repeatedly insisted that he had sought judicial oversight for the installation of the surveillance cameras. This claim comes from his having included statements in his affidavits, when seeking the warrants, setting out that this is what the police intended to do. It is not clear what purpose the police had in informing the issuing Judge of what they intended to do other than being able to say that they had candidly told a judge of their intentions. But that, frankly, gets them nowhere if it was an attempt to treat the Judge as having, by default, implicitly authorised or approved their conduct.

If the breach was not deliberate it was undoubtedly reckless because, at best, the position in law was decidedly unclear and, in the very difficult and unusual circumstances facing them, the police, extraordinary as it may seem, did not obtain any legal advice. It is difficult to resist the inference that formal legal advice was not sought because the police knew or strongly suspected what the advice would be and that it would make it more difficult for them to proceed as they intended.

In view of the conclusion I have reached, it is not necessary to determine whether this state of affairs amounted to bad faith. It is enough to say that I find it impossible to hold that the police honestly believed that the video surveillance was lawfully undertaken.

The court was unanimous that police had knowingly violated the accused’s right to freedom from unreasonable search and seizure under the Bill of Rights Act. They were unanimous that the evidence had been improperly obtained. What they disagreed on was whether that made the evidence inadmissible in all cases. The Evidence Act allows such evidence to be admitted, depending on a number of factors, including the severity of the alleged offence and the nature and severity of the impropriety. The judges balanced these factors in different ways, resulting in overlapping majorities to exclude the unlawfully obtained evidence for those facing only charges under the Arms Act, while allowing it for those facing the more serious charges. But that does not change the fact that the police knowingly and deliberately violated the accuseds' rights. And that is not something we should accept. The Police, of all people, should obey the law. If they don't, they're just a criminal gang with a fancier uniform.

Its official II

The remaining members of the Urewera 18 will receive a jury trial. Good. Without a jury, there was no hope of a credible verdict; whatever conclusion was reached would be indelibly tainted by the trial process. Now that won't happen, and we'll hopefully have a verdict we can have some confidence in. And that's good news, regardless of your opinions on the case.

Its official

Firearms charges against 13 of the Urewera 18 defendants were formally dropped this afternoon. And there's good news on another front as well:

The court also earlier heard that the remaining four will have their case decided by a jury, rather than a judge alone.

[Crown prosecutor Ross] Burns said now that the case only involved four accused, the Crown was no longer seeking to have the trial heard by a Judge alone.

This will take a few more days, since they have to unravel the Supreme Court case, but its great news. The right to trial by jury is absolutely fundamental, and a vital check on state power in cases like this. A judge-alone trial simply would not have produced a credible verdict, which would be a Bad Thing no matter where you stand on the case.

Spinning around suppression

In keeping with its "no apologies" policy, the police are refusing to apologise for their gross abuses during Operation Eight. And in doing so, they've highlighted another problem with suppression: it lets the police tell lies about the case. There is a very significant lie in that press release, and one which casts the police in an even worse light. Unfortunately, the suppression order prevents anyone from calling bullshit. As a result, they get to propagandise, and their lie can get around the world because the truth is legally suppressed.

Fortunately, the suppression order will not last forever. And when it is withdrawn, I'll be revisiting this, hopefully with some OIAs showing that the police deceit was knowing and wilful.

Victory for the Urewera 18!

The Herald reports that following a Supreme Court judgement ruling certain evidence inadmissible, all firearms charges against the Urewera 18 have been dropped. However, four of them - Tame Iti, Te Rangikaiwhira Kemara, Emily Bailey and Urs Signer - are still facing charges of "participating in an organised criminal group". Given that the decision to refuse a jury trial was primarily based on the logistical considerations of an 18-person trial, then it seems like that we'll see a backdown on that front too.

I haven't seen the judgement yet (and it may be is suppressed to protect the fair trial rights of the remaining accused). But the issues it deals with are surveyed in the Supreme Court's judgement granting leave to appeal, here [PDF]. Basically, whether surveillance evidence was lawfully obtained, and if not lawfully obtained, whether its exclusion would be disproportionate to the wrongdoing. Given the split decision on charging, they may have decided "yes" to the former, and that exclusion was disproportionate to some offences but not others. But don't take my word for it - wait for the judgement).

So, four years, hundreds of thousands of dollars, and several ruined lives on, the police's big terrorism case has disintegrated. It may even result in a BORA case seeking compensation for unlawful search and seizure. All told, a pretty big defeat for the police. But that's what happens when you charge in like stormtroopers, without proper respect for the law or human rights.

Justice delayed again

Its official: the trial of the Urewera 18 has been postponed till next February to allow the Supreme Court to consider appeals on evidence and a jury. Which means that the accused will be hanging around in legal limbo for four and a half years.

This is ridiculous. Quite apart from the obvious problems such a long delay poses for the prospect of a fair trial, it also means another year of onerous bail conditions for the accused - effectively punishment without trial. And all of this for offences the government advised would likely only be punished with fines.

The normal wait for a trial in New Zealand is one to two years. This has already dragged on for twice that long, with no end in sight, and it has now reached the stage where it is questionable whether justice can be done at all. Serious cases have been thrown out for shorter delays. If the police persist in their efforts to hold a single, judge-alone trial, this cases may join them. And that would be a loss to us all.