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Search warrants against the media

Written By: - Date published: 7:17 pm, November 17th, 2011 - 57 comments
Categories: brand key, john key, police - Tags:

Stephen Price, a lawyer blogging on media and ethics, has a quick blog on the question of the police seeking search warrants against the media.

I’ve just stepped off the plane back from Melbourne to find that the police are following up a complaint from the Prime Minister by executing search warrants against the media in what could be seen as an attempt to prevent the publication of material that might embarrass him shortly before an election.

I’m just wondering whether I got on the right plane.

Well I can understand that. I get the feeling that whenever John Key hooks up with John Banks then a debacle usually results. Last time was the supershitty. This one feels even more like a looking glass moment. But dragging myself back to the point.

Stephen Price points to a post that he did on the case law on search warrants for media based on a 1995 case that laid out the guidelines

I will summarize them a bit (read the original before quibbling). My comments are in italics.

  1. Where the media organisation hasn’t committed any offense, a search warrant should not be used for trivial or minor cases. In this case it does appear to be a trivial offense.
  2. A warrant should not be granted or executed so as to impair the public dissemination of news. That does appear to be reason for the complaint – and is how the police are proceeding with their warnings.
  3. Only in exceptional circumstances should a warrant be granted or executed if there is a substantial risk that it will result in the “drying-up” of confidential sources of information for the media. Not really applicable
  4. A warrant should be executed considerately to cause the least practicable disruption to the business of the media organisation. I gather that the police wished to take the media from RNZ. The guidelines say that they should look at them on site and only copy what was required for prosecution.
  5. A fifth guideline for the grant of a warrant relates to the relative importance of the tapes for the purposes of a prosecution. The court gave a specific example to do with tapes being better than eyewitness evidence in confused situations. It is hard to see that presumably seeking self-incrimination in a interview with RNZ qualifies under this guideline.

All in all, you’d have to ask what the intent of the police in seeking the search warrants is going to be. There doesn’t appear to be any point to the raids on media under the guidelines for obtaining and using a search warrant against the media. At best they might find footage of the  freelancer putting down the mike as he has already said he did. His intent is impossible to see on film. If he was daft enough to admit guilty intent in a radio interviews, that would wind up as news anyway and be available to the police. So what are they actually after?

Instead from the little I have gleaned from the reports of the polices actions at RNZ today, they seem intent on shutting down the story by removing material that may offend the Prime Minister and the NAct government prior to broadcast. It remains to be seen if any search warrants would be compliant with the courts guidelines without requiring retrospective legislation passed under urgency – as has been previously tried.

Getting the search warrants and the supporting documents from the police and publishing them will make that clear. Especially once we have a look at which officer is putting the requests forward and which compliant court registrar they use. I’d love to get a copy (hint hint).

But at present I get the impression that John Key has been taking lessons from Frank Bainimarama, Robert Mugabe and other doyens of democracy in how to use the police to try and intimidate the news media.  I’m surprised the Peter Marshall puts up with it. It must remind him of the Solomons.

It is going to be amusing to see how Nationals attack poodle blogs will handle these images bearing in mind their dictator billboards in 2007/8

Update: Price has a new post.

The cameraman in the middle of cuppagate, Bradley Ambrose, is reportedly seeking a court declaration that he committed no crime because the recording wasn’t intentional and the recorded conversation wasn’t private. (That is, that the conversation did not occur in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.)

Some of the arguments about whether this test is satisfied have been thrashed out in the posts and threads below. I think the balance of argument is that it can’t be a private conversation. (Even those, like me, who think it might be have to concede that eliminating this element beyond reasonable doubt is a tall order).

Still, I wonder whether a judge will want to grant a declaration about issues that are squarely in the middle of an ongoing police investigation.

You do have to wonder about this. The police are trying to obtain search warrants against the media even before they have interviewed the guy. If I was him I’d be worried if the first time he got to say something was when the judge convicted him. Again pretty common in some countries and based on the behavior of some police over recent years, pretyy damn close here..

57 comments on “Search warrants against the media ”

  1. tsmithfield 1

    “In this case it does appear to be a trivial offense.”

    It has a maximum sentence of two years in prison, so technically it is a serious offence.

    So far as search warrants are concerned, the police have to make a case that search warrants are justified before they can get them. Then the media have various avenues of appeal. So, its nothing like Fiji as alluded to above where the army would probably just bash down the door and take what they wanted.

    “But at present I get the impression that John Key has been taking lessons from Frank Bainimarama, Robert Mugabe and other doyens of democracy in how to use the police to try and intimidate the news media.”

    Lprent, what you say in this respect is bullshit, sorry. And you should be ashamed of yourself for suggesting we have anything but an independent police force.

    You have absolutely no evidence that Key has been instructing the police to take action. In fact, Greg O’conner, on ZB tonight emphasised what a difficult situation police are in with these types of situations, and its damned if they do and damned if they don’t. So, according to O’conner, they just have to focus on doing their job and ignore the politics of the situation.

    • Nah TS for the people involved we are talking about diversion or a fine at worst.  This is not a serious offence.  You cannot get the police to move this quickly on a burglary where the potential penalty is five times as much.

      This is really weird.  

      The police are showing preference for the PM AND are having a chilling effect on our democratic system.  Shame on them. 

    • lprent 1.2

      I suspect that you (as usual) are confused on the difference between accusation, charge, and conviction, and in this case even what offense is alleged to have been committed. The two year possible sentence is not related to the accusation against the journo. That was related to a vague decree by the police about what they would do to the media who played it. Which was frankly pure bullshit by someone in the police because the courts would probably ditch that at a status hearing..

      At this point what we are seeing is a unsubstantiated accusation by a member of the public implying intent to records a ‘private’ conversation held in public between two politicians who invited the media to come and record them. The particular offense that it may relate to has not been established, but is likely to be one from the summary offenses and likely to only carry a fine. The person who recorded the conversation asserts that it was a mistake, and that is borne out by the mike being in its bag on the table right next to them in plain view.

      I’d question if the police could make a charge against the person. And that is before you consider the public interest arguments. It reads more like John Key went to find a charge that sounded like it could be serious rather than was feasible to be serious.

      However that is irrelevent in this case. The seriousness question is between the freedom of the press from harassment by the police with search warrants vs the relevance of the material that they are seeking to the accusation. Quite simply that is what is in question.

      • weka 1.2.1

        Lynn, is it an offense to be in possession of the recording (or transcript)? Or only to publish it? What about sharing it privately?

        • lprent 1.2.1.1

          I don’t really know for sure. I would suspect not in terms of getting convicted. It is a recording made of a public conversation between public figures in a public space.

          However getting charged and being dragged through the courts could be a different story. You don’t have to be convicted to be punished by the police if they think you are offensive, as any protester knows well. The police aren’t exactly paragons of virtue when it comes to how they use the law.

          • weka 1.2.1.1.1

            Ok, so it comes down to how the courts rule on the privacy. If they do rule that it’s private, we don’t know what that will mean legally for people that possess it.

        • mickysavage 1.2.1.2

          Publishing only but sharing it with others privately is publishing it to them.

          • weka 1.2.1.2.1

            So if I had a transcript and I showed it to you, that’s publishing? What about if I tell you what’s in the recording but don’t let you listen to it?

            • Jackal 1.2.1.2.1.1

              You’re allowed to tell people things that you know. Unless there is a court ruling stating that something that you posses is not allowed to be shared or that item is contraband, you can share it.

              I think this is the relevant law:

              Copyright Act 1994

              (3) References in this Act to publication do not include publication that is not intended to satisfy the reasonable requirements of the public.
              (4) The following acts do not constitute publication for the purposes of this Act:
              (d) in the case of a sound recording or film,—
              (i) the playing or showing of the work in public; or
              (ii) the communication of the work to the public.

              However an electronic retrieval system ie TV broadcasting the material is considered a publication.

              It is not an offense to be in possession of the tape recording or the transcript and it is allowable under current law to share that information privately.

              It is questionable whether there is any aplicable law that could be imposed on anybody who chooses to broadcast the tape, as there is no clear privacy for a politician in a public space. Perhaps this is a reason the Police are trying to track down all the copies.

              As far as I can tell, there is no security, defense, international relations or trade secrets that could be exposed in the release of the material. Therefore there is no lawful case for it to be suppressed.

              • Chris

                I’m not sure of the exact laws but I don’t think this has anything to do with the copyright laws?

                I’m pretty sure that there is a law that say you aren’t allowed to publish private conversations. Which is why if the courts decide that it is private conversation TV3 could be fined a bit as they were on camera asking if Don Brash wanted to see the transcript.

  2. ianmac 2

    The reporter concerned has had his lawyer seek a court decision on whether the tapes are illegal. Good move in the name of Democracy.
    But I wonder how long that will take?

    • Lanthanide 2.1

      Yeah, here’s the relevant parts:

      The cameraman at the centre of the tea tapes saga, Bradley Ambrose, has filed proceedings with the Auckland High Court in an attempt to clear his name.

      Ambrose’s lawyer, Ron Mansfield, said he was seeking a declaratory judgement as to whether the conversation which took place between Prime Minister John Key and Act candidate John Banks was private. Ambrose has denied the recording was intentional.

      If a judgement was made saying the meeting was not private, police would be unable to prosecute.

      http://www.stuff.co.nz/national/politics/5982946/Journalist-takes-tea-tape-saga-to-court

      • tsmithfield 2.1.1

        Since the case is pivotal on this judgement, the police might decide to pull back to let this case be decided.

        • Draco T Bastard 2.1.1.1

          It should have been the question the police first asked, they should have asked it when HoS first said that they had the recording and then they should have laughed in Jonkeys face when he said he wanted lay a complaint about it.

        • lprent 2.1.1.2

          It isn’t a case in either case.

          He is seeking a declaration from the judge that if the case came before that judge with these facts on a point of law how the judge thinks that they may rule based on the current law. In other words it isn’t binding and it is pretty contingent on the hypothetical.

          It is interesting though, but the police are unlikely to stop anything based on it. They have a complaint, and they are obliged to investigate even the silliest of complaints.

          However what is unusual in this case is how they are choosing to investigate it. Normally they’d at least interview the person accused. Instead they seem to think that getting search warrants against media organisations is more productive. Don’t you think that is in the least bit suspicious? They seem more interested in seizing the materials and preventing it from being published than they are at asking if a crime has been committed.

          The more I think on this, the weirder the police behavior looks.

  3. Tiger Mountain 3

    “debacle” got me smiling initially, but reading through delivered what could be regarded as a money shot in the final paragraph of LPRENT’s piece.

    “I’m surprised the Peter Marshall puts up with it. It must remind him of the Solomons.”

    Ultimately this is most serious, a fork in the road general election.

  4. gobsmacked 4

    Oh look, we’ve made the front page of the world’s foremost world news site … millions of viewers around the globe … Go NZ!

    http://www.bbc.co.uk/news/

    Some nice pictures of police raids on TV stations tomorrow, and we could get promoted to lead story! Doesn’t it make you proud?

  5. tsmithfield 5

    I disagree. This is not just about one offence. There was a media lawyer interviewed on ZB tonight. According to her, if Ambrose has committed an illegal act, the media would also be breaking the law even with the leading questions they had been using if it gave any hint about the content of the communication.

    I suspect the police were trying to nip a potential crime wave in the bud. 🙂

    Seriously, though, if the police didn’t act now, they could have a lot more prosecutions later if other parties have also broken the law.

    • Tigger 5.1

      Next time ts they’re coming to raid your home. Hope you’re still as blase when they rip up the cushions on your couch looking for ‘evidence’.

      • Mutante 5.1.1

        Nitpicking about the letter of the law in the face of government bullying in the run up to the election. What a fucking Quisling.

        Now if you’ll excuse me I’ve got to somehow get all the bits of sick out from between my keys.

    • Nah TS

      The original offence involves the recording of a conversation that could have easily been overheard.

      Key is being far too cute.  If he wanted to protect a conversation that happened in the Beehive it would be different but this is a conversation that occurred within a couple of metres of a plethora of recording devices belonging to the media.

      Why do you advance these lines?  You are intelligent but you run these troll lines.

      This is an appalling undemocratic use of police power to prevent the publication of information  which we as voters of NZ should have access to.

    • Lanthanide 5.3

      ” if Ambrose has committed an illegal act, the media would also be breaking the law even with the leading questions they had been using if it gave any hint about the content of the communication.”

      In other words, the media don’t think the taping was illegal.

      • wtl 5.3.1

        To follow on from the comment by Lanth, is this from the Media Law Journal blog:

        A final point. As barrister Felix Geiringer has been saying for a while, even if it’s true that Ambrose committed an offence (and he thinks that’s highly doubtful, incidentally), it doesn’t follow that the media will also be committing an offence by publishing the tape or transcript right now. It would have to be shown that the media publishing the material know that it was illegally intercepted. Right now, at best the situation is unclear. If a media organisation published relying on a legal opinion that the tape did not seem to have been made illegally in breach of s 216B of the Crimes Act, then it would be hard to see how a prosecution could follow against that organisation.

      • lprent 5.3.2

        I suspect they are mainly holding off because the anticipation makes it a better story.

      • tsmithfield 5.3.3

        They might think that. Unfortunately for them, what they think doesn’t really count.

        • wtl 5.3.3.1

          Actually it does, assuming there is a good basis for them thinking that, see 5.3.1 above.

          • tsmithfield 5.3.3.1.1

            Except I suspect that once the media are aware that a complaint has been made it would be difficult for them to argue that they didn’t know, at least of the potential, for it to be illegal. Probably similar to receiving stolen goods etc. If you buy some shit cheap from someone who has just had a complaint laid against them for burglary, your argument about not knowing might not stand up too well to scrutiny.

            • wtl 5.3.3.1.1.1

              I suggest you read some of the discussion on the blog I linked to above. Basically, the position of Felix Geiringer is that simply because a claim is made that the recording is illegal does not make is so, and that a media outlet being prohibited from publishing after a complaint was made would be inconsistent with the BORA. I quote:

              Lastly, I haven’t read a discussion yet about a publisher’s mens rea. The publisher needs know it was obtained covertly.

              Is it enough for someone to have claimed it was done deliberately covertly to put them on notice? That does not seem to be a BORA consistent interpretation. That would mean anyone could gag a publisher with the force of the criminal law just by making such a claim.

              If a potential publisher had a statement from the guy who made the tape denying that it was deliberately covert can they be said to know that it was deliberately covert? Especially compared to the evidence for the other side. If the contents of this tape are bland, then what is all the fuss about? If not, then you have to question the credibility of the people who are claiming that it is bland while attacking the actions of the taper.

            • lprent 5.3.3.1.1.2

              They wouldn’t bother about that as an argument. They don’t need to.

              What they argue is public interest. The law is completely behind them when it comes to politicians talking in public places. There is rather a lot of case law behind that. Quite simply the police can bark all they like, but it just sounds like they have someone is juts pushing a taser in the wrong place.

              It simply doesn’t matter what you would like to be the law – it is quite clear you have no idea about what it actually is.

              The only real thing that the media are doing is lining their ducks up with the lawyers to minimize how much of a nuisance the police can be. I’m pretty sure that when HoS got it and asked the the proforma question of the PM’s office, they were expecting to get some whining, damage control, and a “if you must”. They’d have been surprised with the reaction because it was amateurish. So they went for legal advice to make sure that the were covered. Now I’d expect it this Sunday regardless of what the PM and his pet police do.

              • tsmithfield

                Iprent, the public interest argument might be a bit difficult to sustain.

                Firstly, the HoS wasn’t prepared to publish. Secondly, none of the other media have been prepared to actually release the recordings either. If they had a strong public interest argument they would have done so. Thirdly, the content is hardly public interest sort of stuff anyway, which is probably the reason for the reluctance on the part of the media.

                They have probably been skating on thin ice with what they have been doing, if there is no public interest argument. The thing about skating on thin ice is that sometimes you fall in.

                • Lanthanide

                  “Iprent, the public interest argument might be a bit difficult to sustain.”

                  Trotting out that tired line again.

                  The HoS said it *was* in the public interest. That was on Sunday. They said they did not publish because of *moral reasons* only.

                  Do you think the public interest in publishing has increased, or decreased since Sunday?

    • fender 5.4

      I suggest you listen elsewhere for news of the conventional kind, that being the impartial variety. If you wish to recieve real news without bias you will need to look further than Larry Williams. With his love for his neighbour J Key being so strong he would have spent hours making calls in a search to find a media lawyer that was able to spin it the way he wishes to hear it.

  6. Dr Terry 6

    Practically ALL MEDIA much favour the Right (in this case Key and his underlings), and Key wants to take the attack to his friends? (The Standard excluded from this comment). He is in a real hole, for Key dreads nothing so much as loss of “popularity”). The old “charm” might, at last, not be working even for him! The smile (of the tiger) is presently wearing very thin. I am sure many of the police force believe in democracy and find themselves embarrassed.

  7. i’d like to know who leaked Ambrose’s police career details

  8. Anne 8

    The office of the Minister of Police I presume. Under this regime, ministerial offices think nothing of leaking information about individuals.

  9. anne 9

    Surely if the device was left behind and on when the security rushed everyone out of the cafe,then the recording was not intentional,also why didn’t key or banks or key’s security
    spot the little package on the table? perhaps the private/public chat in a cafe with other
    people around and faces pressed against the window threw out a shadow and made their
    vision impared,or key and banks were that much in awe of each other it was like no one
    else in the room,indepth plans discussed on how to roll brash and who to put in his place
    and we now know dumping on our elderly were part of the deal,game over,jurno’s etc
    allowed back in,reporter goes back to get camera/recorder,then when he gets back to
    office and has a look at what he recorded earlier found that what he got was key and
    banks planning strategic political check mates and felt the voting public should know
    as this is a country that is only a week or so from an election,so the public right to
    know becomes the controling factor for the jurno, well that’s what would happen in
    a democracy,but obviously when key realised there was some chat that would bring
    down his false front to the people,he went into damage control,the rest is history.
    His false persona should be obvious to alot of voters,given his recent actions of less
    than honorable behaviour,but it appears nz’ers like that sort of new age kiwi bloke.
    What does that say for kiwi’s?

  10. mik e 10

    can Key go any lower probably darling of the media bights the hand that feeds him now the Media will not give smile and wave an easy ride anymore

  11. mik e 11

    As they say in politics give enough rope and he’ll hang him self

  12. Carol 12

    Even Tracy Watkins (usually a cheerleader for National/Key) is critical of Key/National’s handling of the teaparty issue:

    http://www.stuff.co.nz/national/politics/opinion/5989801/Tea-stains-may-be-hard-to-shake

    The teapot tape fiasco is rapidly spiralling out of National’s control.

    If John Key had not gone to the police and instead allowed his usual pragmatism to reassert itself, the tape would be out by now and the story would probably have died.

  13. vto 13

    Gotta love the TV3 fightback last night.

    First story about polls and first up National’s drop of 3%.

    Second story about teapottape, with Winston Peters first up and given loads of time to lay out all of his lines. That then followed up by John Key made to look hopeless and like he is dodging questions.

    Third story about how Key refuses to answer questions about a multinational oil exploration company wanting to drill here. Shows Key driving off and then the Rena and then linked to the Deep Horizon catastrophe in the Gulf of Mexico.

    Then Campbell Live followed a similar line.

    ha ha ha. karma

  14. Uturn 14

    With a bit of imagination the media could have a field day. Whose to say that copies weren’t made and hidden? One in the garage behind old man Pete’s place. Another in jar under a bench on Quay Street. Three copies wedged in a pigeon’s nest out at the tank farm. There’d be shiny suited detectives puffed out all over Auckland, waving search warrants at uninterested objects.

  15. Pascal's bookie 15

    John Drinnan in this morning’s Herald, (can’t find it on the web yet) quotes a source familiar with the National party’s thinking on this, as saying that it has been a ‘strategic’ decision the whole way. Calling the police, staonewalling etc. All of it political strategy.

    The thinking is that Key is more popular than the media and so he would take less of a hit from a fight with the media than from his comments, and any damage done in the media relationship can be patched up post election.

    So much for “principled reasons”.

    Also, and admission that they are using the police for politically strategic reasons.

    Shameful.

    Que apologists attacking the source no doubt. But track down a caopy of the piece, read it, and compare what he says National’s strategy is to how they are running their lines in the media even as we speak.

    • Lanthanide 15.1

      I wonder if they’re also doing it as a way to show how powerful they are, both to the public and the other parties. Sort of a “look at the outrageous things we can get away with saying, and still win the election” play.

    • tom 15.2

      PB,

      nicely put possibility… strategy etc.

  16. freedom 17

    “But Mr Price says the court may be reluctant to make a declaration during a criminal investigation – and it could decide not to, meaning Mr Ambrose would still have to go to trial.”
    Is this not the cart being welded in front of the Horse.

    How can a criminal investigation proceed on an action that is not yet deemed illegal?
    Investigation of a suspected crime when the parameters are clear as to what constitutes a crime is an altogether different story. To gain search warrants the Courts, not the Police, must decide if something is convincingly at risk of breaking a law and thus identifying a person or organisation that is culpable and able to face charges outlined in the warrant.

    Until the High Court answers the question as to the legality of the recording, the Police should publicly suspend the Investigation. That way they get a win-win for a change.

    http://www.3news.co.nz/Cameraman-sweats-on-teapot-tape-court-ruling/tabid/419/articleID/233177/Default.aspx

  17. tom 18

    several comments if I may..

    Mister NO is not good.

    Prior to this episode tho 3-strikes stuff aside I’ve found reason to admire several National-led law and order issues in and through parliament.

    Now, however, it would appear that the PM’s recourse to the police is instructional: watch my back!

    That said, one needs to ascertain where this might lead. In the next parliament for instance.

    Fair question I sense is well what of a first-time candidate in Rodney? Ex-police, ex-security chief biz for Agility in Kuwait. ACT gone, let’s say, could this be to exercise the party;s ‘heavy’ role?

    Seems to me important as the able Member Dr. Lockwood Smith has relinguished his vast support there to an unknown. Taking #3 on the list instead.

    Mister NO may be ideal for keeping unknowns, but democracy deserves better with known knowns in peoples’ representatives and governments wherever possible.

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