Ignorantia juris excusat

Did you know that if you don't know you are breaking a law, this means that you're allowed to break it without criminal consequences following? At least, you can if you're a New Zealand spy agency.

Completely unsurprisingly, the Independent Police Conduct Authority has rejected Russel Norman's complaint about the way the Police investigated the GCSB's involvement in spying on Kim Dotcom (and other matters). Norman had complained about three aspects of the Police's investigation:

  • The decision not to charge anyone from the GCSB for the unlawful interception of Kim Dotcom's communications;
  • The decision to appoint Kirsty McDonald QC as an independent overseer of the investigation, on the grounds that her other work for the Police on related Kim Dotcom trials represented a conflict of interest;
  • The decision not to investigate any of the other 56 possibly unlawful interceptions of New Zealander's "metadata", on the grounds that this represented a dereliction of investigative duty.

I'm not going to blog in any depth on the last two aspects of the complaint, except to say that the IPCA does have some interesting things to say about McDonald's role as (in the Police's words) “an independent legal review[er]” of the Police's work. In fact, the IPCA found that:

[McDonald] participated in an initial meeting to discuss the process of the investigation; she commented on one or two issues that arose during the course of the investigation; and she made comments on various drafts of the report as they were being prepared by the investigator, but only for the purpose of ensuring that the report was clear and well argued. She said that she had input into the structure and language of the final report, but did not provide advice on the correctness or otherwise of the substantive findings.

Which perhaps is rather less "independent oversight" of the investigative process in this case than was initially advertised ... but let's move on.

It's the first point that I want to come back to, having posted on it previously. In this earlier post, I noted the somewhat surprising interpretation of the relevant offence provision that the Police were applying in this case. To remind you, that offence provision reads:

Subject to subsections (2) to (5), 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.

I, along with other legal commentators, thought that this provision was relatively clear. If you intercept a private communication using an interception device (which the individuals working for the GCSB did), and this is what you intended to do (which the individuals working for the GCSB clearly did), and there is no defence available under subsections (2)-(5) (which there wasn't in this case), then you've committed the offence. Now, there may be reasons for the Police to decide not to prosecute you for doing so - maybe it would be overly harsh to haul the poor technician who just followed orders by bugging Dotcom before the courts. But the elements of the offence are plain to see.

(As I also noted in my earlier post, this understanding of what was needed to commit the offence apparently was one the Police were quite happy to work from when threatening to take Bradley Ambrose to court for recording the "tea tapes" (as well as warning all media organisations not to play those tapes, under pain of prosecution themselves). Indeed, they threatened to charge him under the provision, even while admitting in the press conference that they couldn't prove he possessed the necessary mental "intent" element.)

It turned out that my understanding was wrong, however. Because when it came to examining the GCSB's activities in respect of Dotcom's communications, the Police applied a different approach to the relevant offence. In addition to the requirement that a person intended to intercept the private communications, they also said that that person also had to have intended to do so unlawfully (which the GCSB didn't do). This interpretation was ... somewhat surprising to at least some of us. It appeared to add an entirely new element to the legislation, one not readily apparent from the written text.

That surprise was, in essence, the basis for Norman's first complaint. He asked the IPCA to look at the Police's decision to adopt this understanding of the offence provision, leading to their decision that (in effect) no-one had committed a criminal offence by intercepting Dotcom's communications. In practice, this complaint was always going to fail. For, as the IPCA report notes;

The Authority’s investigation in this case has been of limited scope. It is not our role to investigate the activities of the GCSB. Nor is it our role to determine the accuracy of the legal advice provided to the Police by the Solicitor-General. We are solely concerned with whether there has been any misconduct or neglect of duty by the Police.

And there was precisely zero chance of the IPCA then finding the Police at fault for relying on the legal advice provided to them by the Solicitor General. After all, if the second-highest law officer in the country told them "this is what I think the law means", and on that interpretation the CGSB hasn't committed any offence, then the Police are hardly going to say "the Solicitor General doesn't know what he's on about" and haul someone into court anyway. So, the IPCA basically agreed with the Police's original position. Because the GCSB believed it was lawfully permitted to intercept Dotcom's communications, it committed no offence by doing so (even though its belief was quite wrong, and in fact it wasn't lawfully permitted to do what it did).

Well, that's OK as far as it goes. The Police couldn't really do otherwise, given the advice given to them. And given the limitations involved in the IPCA's investigation, it couldn't really find anything else . However, note what the IPCA said about just how slack the GCSB was about checking to see if its spying on Dotcom really was lawfully authorised:

It is true that, as noted above (para 16), the Police investigation concluded that individual GCSB officers may have been incompetent or negligent in failing to ask Immigration for information on the residency status of Mr Dotcom and Mr van der Kolk, and in failing to seek in-house legal advice, prior to intercepting their communications in December 2011. However, even if they had done so, it is highly likely that the interceptions would still have taken place. That is because, as has been noted above (para 18), the GCSB had an incorrect view of the law. Indeed, when the Deputy Director and Legal Counsel at the GCSB was asked in February 2012, after the Police had raised doubts about Mr Dotcom’s visa status, whether the GCSB had the required interception power, he confirmed that the actions that had already occurred were lawful.

The essential reason for the interception can therefore be found not in the failure of individual officers to do appropriate checks in December but in the fact that the GCSB as an agency had a wrong view of the law. It would therefore have been reasonable for individual operational officers to have relied upon it and to have proceeded as they did. On this basis, the Police would have been justified in concluding that the prosecution of any individual GCSB officer was not required in the public interest.

Get that? The GCSB didn't check to see what Dotcom's residency status was (thus whether they legally could spy on him). In fact, they didn't check with their lawyers about their actions at all. And even if they had done so, they'd still have spied on him, because they didn't understand how the law that governed them worked. So it doesn't matter why the GCSB thought it was allowed to intercept other people's communications - as long as it did think it was.

What interests me now is just how far this "as long as you think you are recording conversations lawfully, then you aren't committing an offence by doing so" logic stretches. Let me give an example.

There's a couple of colleagues at my work - let's call them, purely for the sake of the immediate story, Jesse and Maria - whom I am pretty sure are operating a high level drug dealing operation out of their offices. I have tried to alert the Police to this fact, but they don't appear interested in investigating (citing minor matters like the complete absence of any proof whatsoever to back up my suspicions). So I've decided to take action on the matter myself.

I've planted listening devices in their offices to find out just what they are talking about when they meet. While I am aware that generally such covert surveillance is unlawful, I'm also of the opinion that there is a legal justification for doing so where it may reveal criminal wrongdoing. I haven't actually looked to see whether my opinion about what the law says is correct ... but I genuinely hold it, and apparently there's actually no need for me to check it out before relying on it.

Now, remember, the law that we're told applies to the GCSB (as interpreted by the Solicitor General and agreed to by the Police) is that as long as it thinks it is acting lawfully when intercepting your communications, then it doesn't commit any crime by doing so. That is true irrespective of how wrong its understanding of the law is, or even if it has taken any steps at all to check whether its understanding of the law is correct.

What odds that the Police would take the same view of my trying on that argument in respect of a citizens-initiated investigation (or, if you like, good old-fashioned nosiness)? But if they want to take a different view of my actions, on what basis will they do so?