Friday, September 16, 2011


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.