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?

Comments (10)

by John Norman on March 26, 2012
John Norman
Andrew, Before I chase up your link could you confirm whether you are saying "deliberately reckless" as opposed one or t'other? The reckless without regard you give appears insufficient insofar either my understanding or the law cited.
by Ian MacKay on March 26, 2012
Ian MacKay

Andrew. I am still unsure just which part was unlawful.

by Andrew Geddis on March 26, 2012
Andrew Geddis

John,

My point is that teh offence requires a mens rea of "intentionality". So either "reckless" or "deliberately reckless" (insofar as there is a difference between them) isn't enough.

Ian,

Allegedly, the act of recording in and of itself was unlawful. Passing it on to the Herald on Sunday is neither here nor there (although, if it hadn't happened, no-one would have known of the recording).

by Russell Brown on March 26, 2012
Russell Brown

Burgess said police investigators had decided that the recording was "most likely" deliberate. He then credited Ambrose's "letter of regret" for the decision not to prosecute.

But in that letter, Ambrose says what he has said from the beginning: that the recording was inadvertent.

So according to Burgess, Ambrose was spared prosecution on the basis of a letter to the complainant in which he was "most likely" lying.

This really doesn't make sense, does it?

by Andrew Geddis on March 26, 2012
Andrew Geddis

Russell,

I guess Ambrose isn't going to write a letter saying "fair cop, I done recorded things like they says I did". And if that letter then got Key to say "I'm happy not to see any prosecution here", then that is something that the Police have to take into account when making a prosecutorial decision.

But no ... something doesn't make sense.

by Scott Chris on March 26, 2012
Scott Chris

 I am still unsure just which part was unlawful.

As am I. If the conversation was not deemed to be private and the taping deemed to be inadvertent then which law was Ambrose breaking?

And since when do the police unilaterally judge a contentious point of law:

Assistant Police Commissioner Malcolm Burgess stated that :"While police have issued a warning in this instance, we are clear that the actions of Mr Ambrose were unlawful."

by Andrew Geddis on March 26, 2012
Andrew Geddis

Scott,

The Police think the conversation was private and that the taping was (most probably) deliberate. And if they think that, then they think the taping was (most probably) illegal - which they must think before they proceed to place charges before the court for a conclusive decision on the matter. It's just they don't think it's in the public interest to prosecute here ... despite apparently believing that the Prime Minister of the country was deliberately bugged by a member of the media in an effort to glean information that might change the outcome of the upcoming election.

Personally, I think they probably over-egged things in their press conference, but reasonable minds can differ ... and so law-focused minds will differ much, much more often.

by Rab McDowell on March 26, 2012
Rab McDowell

Particularly if the device left on the table was a transmitting device rather than a recording device then "on the balance of probabilities", it seems to me that the recording was intentional because of the other steps required to actually make the recording. Most likely it was spur of the moment rather than premeditated but intentional just the same. However, that doesn’t mean the intent could be proved “beyond reasonable doubt”.
So, no case, no prosecution.

by mudfish on March 26, 2012
mudfish

Language, eh?

Mr Brown said: "Of course I apologise if I've said anything that's been offensive and I would never put myself in a position where I would want to say anything like that about a woman I'd met. " So did he inadvertently or intentionally call poor Mrs Duffy a bigot? Given his time again, he wouldn't intentionally do so, especially in public, but he was no doubt thinking it, so it's hard to say he didn't intend to say that (unless he's got Tourette's?). But it was a "private conversation" (Mr Browns words) inadvertently picked up by an intentionally placed microphone, with Mr Browns consent, in a situation where things moved fluidly from public to private.

So it was inadvertent in the sense that Sky News didn't know that they were going to record explosive private conversations as well as humdrum public ones. They obviously intended to record the public ones. But it could happen frequently unless those being recorded are very clear about when they are speaking publically and when they are not, and give the press ample opportunity to remove microphones etc. Mr Brown was rushed, presumably forgot the microphone was there and went straight from public to private converstaion. It's hard to say Sky News were at any fault for inadvertently recording it.

But broadcasting the (I'm saying in NZ law legally obtained) private conversation now in their hands would be clearly against the intention of 216C where private communications are not to be disclosed.

I think 216B was intended for bugs planted by spies and has only inadvertently included the press. Broadcasting/press/internet?? standards could have a part to play, but what news outlet could resist broadcasting a PM calling someone a bigot unless using private communications was clearly in contravention of the standard? If for instance public interest was part of the consideration of whether to broadcast or not, this would surely be broadcast (as it was) to reveal some "true colours". Is it generally in the public interest to know what the differences are between a public figures' public and private lives? Surely public figures must be allowed some privacy and some private thoughts (that they might normally try and keep to themselves). So where does the line get drawn?

Oh, and I don't get who the "every one" in s216B would be in the case of Sky News, assuming they had intentionally obtained Mr Browns private conversation.

So what if the comment was, instead of Sky News, caught by Joe public and youtubed? I'm guessing there's technology out there to allow Joe to catch Mr Browns comments from some distance away, so that when he thought he was speaking privately, he was in fact open to be heard by the public.

Perhaps it's time to outlaw hidden recording devices, make them all have a flashing light so everyone knows when they are being recorded or not. But then Mr Brown knew he was being recorded, he just forgot...

My first thoughts were to argue with John Norman that "deliberately reckless" was an oxymoron, but the more I thought about it, the more I thought Bradley Ambroses recording (on the limited evidence I've seen) could have been all of: inadvertent (inadvertently recorded, inadvertently unable to remove the device when the media were ushered out), intentional (intentionally placed the device, perhaps for another purpose e.g. to record the public part of the conversation), deliberate (deliberately placed the device as in "I'll put it here and see what happens", hard to prove), accidental? (as in "I put it down and it's accidentally in a prime position to record something others might want to hear"), reckless (either in the sense of "heedless of consequences" or "careless" but probably not both).

So where does that leave me? Thinking the law as written can be argued a multitude of ways but probably wasn't written for the press. Perhaps broadcast/press/internet rules/laws need rethinking here? Could include: surreptitious recordings not allowed, accidental recordings need clearing by those being recorded. But then we wouldn't see anyones true colours - Mr Brown (brown?), Mr Banks (true blue), Mr Key (what colour do you want me to be today?). Hmmm.

by Stephen Parkes on March 27, 2012
Stephen Parkes

"The Police think the conversation was private and that the taping was (most probably) deliberate. And if they think that, then they think the taping was (most probably) illegal ..."

Still seems wrong to me. Look at that statement again: "While police have issued a warning in this instance, we are clear that the actions of Mr Ambrose were unlawful." (My emphasis.)

That can really only be read as a statement of certainty. (If I said: "Let me be clear, the earth was created 6000 years ago by God", I'm obviously not intending to leave any doubt about my position.) It gives the impression that police are saying they are satisfied that the charges likely could be proven, but for other reasons - such as the apology and its acceptance - they have decided it would not be in the public interest.

That is inappropriate (at the least) when they have elected not to prosecute. They seem to be having their cake and eating it too, when they also stated: "The investigation reached a view that at the very least it was reckless and it was, in the view of the investigators, more likely deliberate."

That's in effect the same as saying: "The investigation reached a view that it was probably deliberate, but there's no point arguing he's probably gulity in a criminal trail".

 

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