Sing me to sleep

The real scandal isn't that the Police set up a (probably) illegal drink driving checkpoint to get the names of elderly people interested in exercising control over the circumstances of their own death. It's that our law doesn't allow such people an option without having the Police stick their noses in to it.

I'm presently out of New Zealand, enjoying a family break at Joshua Tree National Park in the US of A before immersing myself in the joy and wonder that is end of year exam marking. I guess that means I should be writing you an insightful and searing critique of the US Presidential race, but really ... what's there to say? Just listen to this instead.

Being in holiday mode also means my attention to matters back home has been somewhat patchy. However, the admission from Police that they set up a drink-drive checkpoint to harvest the names of attendees at a meeting managed to snag my eye. As far as I can work out from the various media reports (which really are all I have to go on), this is what seems to have happened.

At least one person with links to "Exit International" - an organisation that advocates for and advises on "a non-medical approach to a person’s right to determine the time and manner of their passing" -  has ended their life using (I think) the drug Nembutal. The Police were investigating that death for the coroner, but came to the conclusion that the person was supplied with the Nembutal by another person, who has thus aided their "suicide" (which is an offence under the Crimes Act). So they commenced an investigation into the source of the drug, believing it was most likely one of the (predominantly elderly) members of Exit International.

However, finding out who in the Exit International group is supplying Nembutal to other members is going to be somewhat tricky. The Police don't even know who the members of that group are - it's not like you can look up membership lists on the internet - and it's unlikely the secretary (or equivalent) is going to give them the names if asked to do so (assuming there even is a formal membership list). So the Police come up with a ruse to collect that information by mounting a drink driving checkpoint just down the road from the group's meeting in Lower Hutt as it was ending.

Setting up such a checkpoint doesn't require any specific authorisation - they pretty much can be established anywhere at anytime. The unpredictability of such testing is, after all, a key part of the anti-drink driving message! Then, once people were stopped to "see if they had been drinking", the Police used their powers under the Land Transport Act to require those people to give their names and addresses.

With that information in hand, the Police obtained warrants to allow them to search the homes of six-to-ten (I've seen different numbers quoted) members of Exit International to try and find the supplier of the Nembutal. It's not clear if they have managed to do so, but  according to an elderly woman has been arrested for importing "a class C drug into New Zealand".

So, if the Police have made an arrest, what's the problem? Well, there's an immediate legal one, and a bigger background one. 

The immediate legal problem is that the decision to set up a breath testing checkpoint and then require names and addresses from those stopped at it almost certainly is unlawful. Yes, the Police can randomly stop and test drivers to see if they are over the legal alcohol limit. But they have to actually have that purpose when doing so, rather than doing so as an ancillary activity to some other true purpose for the traffic stop.

And we know that the checkpoint was not really for the purpose of enforcing drink driving laws because the Police have admitted that this was the case. Even if they hadn't done so, the fact the checkpoint was set up at 4 pm on a Sunday afternoon in a suburban Lower Hutt street kind of gives the game away - there is no way that ordinary Police operating procedures would set up breath testing at such a time in such a place.

So the basis for requiring the Exit International members to stop their cars looks legally dodgy to me. Furthermore, the Police's power under the Land Transport Act to demand names and addresses of those stopped can only be exercised for the purposes of that legislation:

to promote safe road user behaviour and vehicle safety; and

to provide for a system of rules governing road user behaviour, the licensing of drivers, and technical aspects of land transport, and to recognise reciprocal obligations of persons involved ...

Which manifestly does not include finding out who may be a member of a group that you want to raid in order to see if they are holding drugs that may be used in an end of life situation!

Thus, the Police's actions almost certainly constitute an "unreasonable" search and "arbitrary" detention of the group members under the New Zealand Bill of Rights Act 1990. Which then leads to another problem. Because the subsequent searches conducted on the homes of six-to-ten members of Exit International were undertaken (we can assume) using information gained through this unlawful police ruse. What does that fact then do to the legal status of those warrants?

One question may be whether the Police told the judge who signed off on the search warrants how they got the names of the people to be raided. Because, if the Police failed to tell her or him that they (probably unlawfully) set up a breath testing checkpoint simply to obtain the individual's details, then that looks likely to fail to satisfy the "duty of candour" that they owe to the Court when seeking a warrant. Which would render that warrant invalid - meaning that the searches of the homes of the six-to-ten members of Exit International would be unlawful.

And even if the Police did tell the judge this detail, the decision to issue a warrant on the basis of (probably) unlawfully obtained information looks highly questionable in law. Meaning, again, that the warrants would be invalid and the resulting searches illegal.

So given these looming problems for their operation, it is good that the Police have proactively asked the Independent Police Conduct Authority to review their actions. But I strongly suspect that this is going to end up with an apology and payout to those caught up in the investigation - with the added chance that whatever evidence the Police have managed to gather of people possessing and supplying Nembutal will get thrown out of court. 

However, that isn't really the problem here. In justifying why the Police were involved in this issue at all, Inspector Chris Bensemann said this:

Police are responsible for enforcing New Zealand's laws, and currently suicide or encouraging/helping someone to commit suicide is illegal in New Zealand.

Somewhat worryingly, Inspector Bensemann is plain wrong when he says that "suicide ... is illegal in New Zealand". It isn't - no law prohibits either the act or attempted act of suicide. You'd think a high ranking police officer seeking to explain his officers' actions might have fact-checked his statement a little more closely. But he is correct when he says that "encouraging/helping someone to commit suicide is illegal."

And so this Police investigation really is an unfortunate by-product of the Seales v AG case, on which I've written here. To remind you, the High Court ruled there that even a competent and rational person who chooses to end their life because they are suffering and/or dying still commits "suicide" in terms of the Crimes Act. Consequently, anyone who helps a friend or family member suffering from ALS to swallow a fatal dose of Nembutal is just as guilty of an offence as is a person who gives a gun to a depressed teenager and urges him or her to end it all.

Which means that we now see the Police investigating and charging elderly folks who are running the equivalent of a Dallas Buyers Club system for end-of-life situations as if they were amoral internet trolls urging the depressed and vulnerable to kill themselves just for the lols. But not to worry, because the police officers who are intruding into the houses of elderly folk who may never before have had any problems with the law to seize the drugs that they believe will give them comfort as their inevitable, all-too-near death approaches are leaving letters with them containing the numbers of suicide support services. Because that's clearly what they need - and you're welcome.

Which is something that often gets overlooked in the current debates over end of life choices. By not offering a regulated way in which people facing end of life suffering can access aid in dying, we create the conditions where a black market emerges. Either the Police turn a blind eye to such practices, in which case we really don't know what pressures a person may have been exposed to before "voluntarily" ending his or her life, or they crack down and enforce the laws on the books. And in practice that enforcement means serving search warrants on elderly people, arresting them if they are found to have substances like Nembutal, and putting them through the Courts. 

So ... why? Is this something that our police force ought to be used for? Is this the sort of thing the State should be doing to rational, competent individuals who want nothing more than a sense of control over the way their lives will end in order to avoid suffering they feel cannot be ameliorated in any other way? 

Because for me the real scandal here is not that the Police broke the law in how they investigated the members of Exit International. Rather, it's that the Police have any reason to be sticking their noses into their decisions in the first place.