The way the police have approached the GCSB's covert recording of Kim Dotcom is markedly different to how they approached Bradley Ambrose's recording of John Key. Why is that?
The police have announced that, following an in-depth inquiry into Russel Norman's complaint that the GCSB acted in a criminal fashion by intercepting Kim Dotcom's private communications, the law was broken but no-one can be blamed.
This is somewhat surprising. Here's how the indefatigable Graeme Edgeler summed up the legal position back in September last year.
Questions of criminal liability for the [GCSB's] admitted unlawful interception do not turn on knowledge that what you are doing is illegal.
The major question in any criminal prosecution are:
- was there an interception of a private communication?
- was that interception by use of an interception device?
- was that interception intentional?
- was the interception undertaken pursuant to statutory power (e.g. in the GCSB Act)
Other similar offences – for example, accessing a computer without authorisation – require actual knowledge, or reckless indifference as to the lack of authority for the access. And some other offences include a requirement that the offending by done “without colour of right”. Such provisions can mean that a mistaken understandings of the legality of an action can be a defence in criminal proceedings.
There are also defences that apply when a court or similar illegally issues a warrant (as it did in respect of the search warrant relating to Mr Dotcom’s residence). These defences can provide those acting on such warrants protection from criminal liability.
But none of these defences can apply to a charge in the circumstances we have here, where the actions took place without a warrant, and outside the scope of any power that the GCSB can exercise without a warrant. If someone from the GCSB intentionally intercepted a private communication of Kim Dotcom, it is highly likely they have committed a criminal offence even if they are completely blameless.
That summary seemed pretty accurate to me at the time. But it turns out that there must be something wrong with it, as the police have concluded that while the relevant actus reus took place (i.e. there was an interception by the GCSB of one of Dotcom's private communications using a communication device), the necessary mens rea could not be established (i.e. it couldn't be shown that anyone had "intentionally" intercepted that communication).
That conclusion seems odd, given a common or garden understanding of the word "intentionally". After all, it would be pretty clear who meant to intercept Dotcom's private conversations. The technician who hooked up the interception device to Dotcom's phone line/internet connection, for one. Or the person who instructed that technician to do so.
Which means that it would appear the Police have read into this offence provision some sort of extra knowledge requirement, along the lines of "you meant to record the conversation and you were aware that it was wrong to do so while you were doing it". Which is not something that actually appears to be an element of the relevant offence provision.
Now, I'm not necessarily saying that the police's decision not to bring a case here is the wrong one. It would, after all, seem a bit harsh to haul some lowly GCSB employee before the courts to face punishment for doing her or his job, just because someone further up the chain had screwed up their interpretation of Dotcom's residency status.
However, it is one thing to decide that a prosecution is not warranted, despite evidence that the necessary elements of the offence have been met. It is quite another to start rewriting the relevant offence so as to make it fit (or, not fit) the case before you.
And what is more, I can't help but compare the police's somewhat understated response to this secret, unauthorised recording by the GCSB with their response to Bradley Ambrose's recording of the tea tapes. In the GCSB's case, we had a press conference in which one Detective Superintendent Peter Read gently explained that while, yes, Dotcom's conversations had been recorded without lawful authority, no one really meant any harm by it. Instead, it was your classic case of "systems failure"; in the sense that "police did identify a number of shortcomings in the handling of the interception requests" and "GCSB staff also did not follow their own internal processes in actioning the Ofcanz requests [to listen in on Dotcom]."
In Ambrose's case, no less a figure than the Police Assistant Commissioner Malcolm Burgess stepped before the cameras to lambast Ambrose for his actions and sternly threaten to prosecute anyone who tried anything similar in the future. This is despite, as I noted at the time, along with Graeme Edgeler, the basis for Burgess' claim that there was sufficient evidence to prosecute Ambrose being immediately undercut by his acceptance that Ambrose may have only been "reckless" in making the recording - which falls far below the "meaning to and knowing you are doing wrong while doing it" threshold for liability that the police now seem to think applies to the offence.
So, there you have it. It all looks a bit ... odd. And a more conspiratorial minded figure than myself - step forward Danyl Mclauchlan - might be minded to make something more of this than I'm choosing to here.
[Update: Oh great - in the time it's taken me to put this post together, I see Graeme Edgeler has posted essentially the same thing ... only in a far better and more learned fashion. You shouldn't have wasted your time reading the above, but instead gone here and read what he said. Sorry.]