Saturday, June 20, 2009

"Boy racers": arbitrary detention

The government-directed police crackdown on "boy racers" seems to have developed a new tactic: arbitrary detention:

Police corralled 120 boy racer vehicles in a Kaiwharawhara car park while the cars underwent thorough road-worthiness checks.

The four-hour police operation ended early yesterday morning with 15 cars ordered off the road and 38 infringement notices issued.

It happened in the Spotlight car park at the bottom of Wellington's Ngaio Gorge, from 10pm on Thursday to 2am yesterday.

I am struggling to see a legal basis for this, and it seems to constitute arbitrary detention. Detention because, while the police claim in the article that the drivers were "free to come and go as they pleased", the drivers clearly did not feel that that was the case, with one quoted as saying
"We were prisoners in the car park until they finished inspecting our vehicles."
The test for detention is a reasonably held belief induced by the conduct of police or officials that someone is not free to leave. That is clearly the case. Contrary to the claims of the police, these people were detained.

Was that detention arbitrary? Yes, on two grounds:

  • While the police unquestionably have powers to stop motorists in order to inspect vehicles and if necessary order them off the road, that requires a reasonable belief that a specific vehicle does not comply with the regulations. This was clearly not true in this case - the police applied a blanket policy of testing every vehicle in the area, based solely on its location. And that is a prima facie case for arbitrariness. Where the law provides for the exercise of a power to detain, then the appropriateness of exercising that power must be assessed in each case. Detaining someone as part of a blanket policy is an unlawful abdication of discretion (Attorney-General v Hewitt [2000] 2 NZLR 110, which found that a blanket policy of arresting all suspects in domestic violence cases and detaining them overnight to "cool off" was unlawful).
  • Initially lawful detention can become arbitrary if its duration becomes excessive. This is most famously seen in the case of Ahmed Zaoui, but it applies in other circumstances as well. Here, the power of police to incidentally detain while enforcing the road regulations is limited to only as long as is reasonably necessary to complete the exercise of the power or duty concerned (interestingly, in the case of a roadside stop to establish the identity of the driver this is limited to 15 minutes, which suggests that such incidental detentions are expected to be brief). Here, people were detained for four hours. The police might argue that that was the quickest the seven officers involved in the operation could inspect the vehicles - but I would suggest that if they planned to detain 120 cars, then they should have provided the personnel to conduct the inspections quickly enough not to infringe upon the civil liberties of the drivers.
There is a further question of whether the detention was for an improper purpose - not enforcing road safety, but intimidating "boy racers". The fact that fully two-thirds of the vehicles detained were found to have no problems supports this.

In their zeal to get "tough on crime" headlines for the Minister, the police seem to have overstepped the bounds of the law. They should be held to account for it.