The police decision not to prosecute Bradley Ambrose means we'll never really know what happened at Newmarket's Urban Cafe. And that suits everyone just fine.
The term "a Solomonic judgment" is often misused. The point of King Solomon's "they-get-half-a-baby-each" decision, after all, was not actually that cleaving the infant in twain would best serve the needs of justice, but rather that proposing this outcome enabled him to see who was the child's real mother. It was, in other words, a particularly clever means of determining the truth of the matter.
However, the police decision not to charge Bradley Ambrose for making the so-called teapot tape looks to me like a Solomonic one, in the popular sense of bypassing the truth in order to give everybody something to keep them happy.
First up, it means Mr Ambrose doesn't have to spend a bunch more time and money defending criminal charges in court. Sure, he'd probably rather have had his name completely cleared by the Police, in the sense of getting an announcement that there was no basis for any charges to be laid. But I'm sure he's happy to accept a second-best outcome in this situation.
Second, by giving John Key and John Banks a letter of apology, the point of principle that the Prime Minister cited in laying a complaint with the Police in the first place is satisfied. John Key always claimed that his reason for pursuing the matter was to draw a line in the sand when it comes to the media's newsgathering tactics. Having Mr Ambrose admit that he was wrong to pass on the recording to his employer (the Herald on Sunday who, we should once again note, chose not to publish the contents on ethical grounds) goes some way to vindicating that stance.
In fact, this outcome is probably the best on that John Key in particular could have wished for. It makes it look like he was right to chase the matter up, while avoiding having any more court proceedings that would drag the matter out in the public eye.
Third, the Police's position that there was sufficient evidence to justify laying charges against Mr Ambrose, but not sufficient public interest to do so, has a two-fold effect. It will in practice stop any of the mainstream news organisations from reporting directly on what is in the tapes (although they probably would be safe if they did so, and you can pretty easily find out what was on them for yourself). Furthermore, it works to deter any future media actions of a like kind, given that no proper news organisation will want to risk criminal investigation and potential prosecution.
So the Police's announcement gives potential legal teeth to the ethical imperiative not to gather information through such means, or to publish information so gathered. Which may seem like a reasonable outcome, given that otherwise public figures could never say anything with candour, least a hidden microphone be capturing what it is they really think.
That said, I'm not 100% convinced by the Police's claim that they could have successfully prosecuted Mr Ambrose here. I've only got the second-hand press accounts of the Police's press conference to go from, but according to TVNZ the "police deemed the conversation was private and think the recording was at best 'reckless', but more likely deliberate." Now, reasonable minds may differ on whether the conversation between the two Johns really was a "private communication", given how it was set up and widely reported/overseen by a bank of cameras within feet of them. But given that the Police themselves say Mr Ambrose's recording of the conversation may only have been "reckless", it looks to me that they are admitting that one of the elements of the offence couldn't be proven beyond a reasonable doubt.
The relevant offence, section 216B(2) of the Crimes Act, states: "every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device." Note that word, "intentionally". It isn't enough that someone was reckless about intercepting a private conversation (i.e. didn't really care whether or not it came about). You need to show they deliberately set out to do so.
Now, of course the Police do say that they think it is "more likely" that Mr Ambrose had this intention than not, but that's not the same as saying they could show beyond a reasonable doubt that he did so. And without having access to any evidence they may have seen that contradicts Mr Ambrose's oft repeated claims that the recording was accidental, I'd also note that a stern statement that they think he was legally culpable (without then having to prove that claim in court) helps to serve the deterrence purpose I've just outlined. Not that I'm suggesting anything so crude as that the Police would misrepresent the evidence they had to serve a higher purpose ... just that this higher purpose may colour the way they view the evidence that they have.
So all-in-all a generally satisfactory resolution to a particularly odd little episode in New Zealand's political history. However, it's a rare outcome that is good for everyone and holds no downsides whatsoever. So here's a thought.
In settling the teapot tapes, the Police have given a pretty stern message to the media. If you go about recording public figures in situations where they think they are having private conversations, then they will come after you. According to Assistant Police Commissioner Malcolm Burgess, "future occurrences were likely to be prosecuted."
But here's my question for you. Given the Police's words of warning at today's press conference, would any news outlet feel safe in reporting on this incident? If so, why? And if not, isn't that a bad thing?