Time for a real Police Tribunal?

Yesterday the “Independent” Police Conduct Authority released its report into the conduct of Police during the 2012 mass arrest of students at the “Blockade the Budget” protest. In the “About the Authority” section near the bottom the report claims that the IPCA is similar to a court:

Being independent means that the Authority makes its own findings based on the facts and the law. It does not answer to the Police, the Government or anyone else over those findings. In this way, its independence is similar to that of a Court.

The two main things that distinguish the IPCA from a tribunal or court is that it is not bound by precedent and there is no right of appeal. Those two things are the biggest incentive for a court or tribunal to be very careful in their interpretation of fact and law.

The IPCA is chaired by a Judge and appears to have a purpose consistent with that of a court:

On completion of an investigation, the Authority must form an opinion on whether any Police conduct, policy, practice or procedure (which was the subject of the complaint) was contrary to law, unreasonable, unjustified, unfair, or undesirable. The Authority may make recommendations to the Commissioner.

It would be really interesting to see how a report like this would stand up to scrutiny by the higher courts. In that respect I wonder if it’s time for the IPCA to be turned into a real tribunal.

In the weeks after the Blockade the Budget protest I wrote two posts here at The Standard. My first post theorised that the police intentions were to incite a riot (I stand by this after reading the report). My second post included a video showing a Police Liaison Officer speaking to protest organisers 10 minutes before the march. I urge you to read both of those posts and then read the IPCA report.

Lack of perspective and independence

In a court decision, where there is conflicting evidence, it is standard for both sides of the conflicting evidence to be quoted or at least summarised, and then for the judge to justify why he/she has preferred, or found more credible, one piece of evidence over another. That is just one way that a court attempts to display transparency and allow scrutiny of their decision making process. This report does not do that.

There are 8 italicized quotes from police (paragraphs [12] [14] [27] [30] [31] [44] [46] and [53]) and none from any other perspective (unless you include a list of chants at the protests in paragraph [60]).

The main narrative and perspective throughout the IPCA report is from a police perspective. Further the report consistently speaks for or on behalf of the police with the use of language such as “police felt”, “police aimed”, “police wanted” and “police considered”. The language used to introduce the police perspective is telling when compared with the language used to introduce the demonstrators’ perspective. For example the three most common ways to introduce the police perspective were “police said”, “police told the authority” and “police reported”. Meanwhile the three most common ways to introduce the demonstrators perspective were “demonstrators complained”, “demonstrators claimed” and “demonstrators alleged”. The differences are subtle but telling.

Police perspective:

• police felt [13] [19]
• police aimed [20] [43]
• police took into account [20]
• police were unaware [28]
• police did not know [33]
• police were unable [37]
• police told the Authority [15] [29] [30] [39] [40] [45] [46] [55] [62] [63] [71] [114] [129] [150] [160]
• police said [32] [38] [43] [44] [49] [64] [65] [67] [68] [70] [71] [122] [129] [130] [133] [134] [135] [139] [151] [157] [165]
• police acknowledged [31] [161]
• police told them (the demonstrators) [44]
• police viewed [20]
• police wanted [43] [113]
• police decided [43] [68] [123] [131]
• police believed [45] [64] [132]
• police reported [50] [51] [52] [65] [121] [128] [143] [174]
• police denied [59]
• police identified [66]
• police gave instructions [66]
• police deduced [69]
• police stated [113] [130]
• police accepted [135] [176]
• police considered [136]
• police were mindful [162]
• police advised [172] [174] [175] [177] [178]
• police informed [178]

Demonstrators perspective:

• demonstrators alleged [4] [57] [111] [149]
• demonstrators advised [16] [136]
• demonstrators told the authority [18]
• demonstrators claimed [47] [58] [73] [76] [79] [125]
• demonstrators complained [73] [77] [109] [119] [125] [138] [153] [164]
• demonstrators questioned why [110]
• demonstrators believed [112]

The findings

The only issue I am going to address is that of whether the police were justified in their use of force and mass arrests. The other issues in the report (such as police not displaying identification, refusal of the right to speak with a lawyer after arrest, and whether the force was brutal or excessive) are not unimportant however this post is already long enough.

[115] The demonstrators did not advise the Police or Auckland City Council of their intentions during either demonstration.

The IPCA is relying solely (as far as I can tell) on Police evidence to support this finding. Nowhere in the report is there even a suggestion that this fact is in dispute.

[34] As a result of this uncertainty, a liaison of ficer (Officer C), a sergeant, was appointed to communicate with the demonstrators during the protest in an attempt to find out what their plans entailed and the route they were to take.

[36] Officer A tasked Officer C to make contact with the demonstration leaders to try to find out what their plan was and the intended route.

[37] However, after trying to engage with the leaders for about 10 minutes, Officer C was unable to get any information on the demonstrators’ intentions.

Apparently the IPCA’s investigation was quite broad and included interviews with 19 protesters and an “examination and analysis of YouTube video”. Maybe none of the protesters gave a differing view. Maybe it was just an accident that the YouTube analysis missed any video that ran counter to the Police version of events. The video (and transcript) I mentioned earlier show the protest organisers speaking very clearly with the Police Liaison Officer about their intentions.

[106] The Authority’s investigation included:

• a visit to the scene at Symonds Street and surrounding area;
• interviews with key Police staff who were involved with the incident;
• interviews with 19 of the complainants;
• consideration of the Police and complainants’ recordings of events;
• examination and analysis of YouTube video and TV news footage; and
• independent examination and analysis of all evidence in the Police investigation file.

Funnily enough the protesters’ intentions (to block the road but only if they had the numbers) at the beginning of the protest aligned quite nicely with what Officer B (second in charge) told the IPCA the police intentions were:

[29] Officer B told the Authority that it was his intention to allow a protest to occur, with Police escorting them to their destination. He said depending on numbers he would allow them to use one lane of the road, or if the demonstrators numbered into the hundreds, to occupy the whole road.

[118] The Authority is satisfied that the Police helped the demonstration proceed peacefully until the actions of the demonstrators, in sitting and blocking part of Symonds Street, required more active policing.

This finding is directly contradicted in the report itself where it acknowledges that right from the start of the march the Police started trying to push the protesters off the road and onto the footpath.

[41] At approximately 3pm the group of demonstrators, which by this stage numbered over a hundred, began to move from the University library east onto Alfred Street and then south down Symonds Street. This section of Symonds Street has two lanes in each direction. As the demonstrators moved off they began to move into the two south bound lanes which created some minor traffic disruption. Officer A instructed Police to help clear the road by channelling the demonstrators onto the footpath while Officer B, at the same time, was giving instructions to the demonstrators to move onto the footpath using the loud-hailer.

[42] In an effort to prevent the demonstrators from taking over more of the road, Police officers in the March Group walked alongside them and, at the same time, attempted to move them towards the footpath. Although the demonstrators became quite compact they were spread over a distance of 50 to 80 metres.

[43] After walking a short distance along Symonds Street the demonstrators responded to a person in the group saying “sit down, sit down” and they collectively sat down in the middle of the two southbound lanes, blocking one lane. At that time Officer A decided to place officers at the front of the group so that efforts could be made to talk to the perceived organisers to help identify their intentions. Officer A said that at this stage, the aim of Police was to allow the group to demonstrate in a safe manner but that Police wanted to move the demonstrators onto the footpath.

[44] He also told them that they could protest peacefully on the footpath but they could not stay on the road.

Pushing the protesters off the road right from the start of the march is at odds with Officer B’s evidence that the police intentions were to allow the protesters to march up the road if they had the numbers. Officer B stated that numbers “in the hundreds” would warrant taking over both lanes. The report contains some contradictions in the count of protesters but it’s pretty clear that the numbers were “in the hundreds”:

[41] At approximately 3pm the group of demonstrators, which by this stage numbered over a hundred…

[42] Although the demonstrators became quite compact they were spread over a distance of 50 to 80 metres.

[70] Officer A said that around 200-300 demonstrators went to the Police station which caused it to go into ‘lock-down’.

The most conservative estimate of numbers by the police is over a hundred from the start of the march (surely enough to warrant marching up at least one lane of the road). The Police evidence that when the protesters became “quite compact” they were still “spread over a distance of 50 to 80 metres. That suggests at least a couple of hundred people. Officer A then states that there were 200-300 demonstrators protesting at the Police Station and that was after 43 of them had been arrested!

[150] In response to complaints that Police dictated where the demonstrators could or could not go, Police told the Authority that as they did not know the demonstrators’ intentions they had to follow where they went rather than lead them.

Another assertion that the Police did not know the protesters’ intentions. Apparently trying to push the protesters off the road was not dictating “where the demonstrators could or could not go”!

The IPCA believes that trying to push protesters off the road is “helping the demonstration proceed peacefully”.

[146] It was only when the demonstrators sat down and blocked the southbound lanes of Symonds Street, causing obstruction and traffic disruption, that the Police took action against them.

It is the view of the IPCA that trying to push the protesters off the road was not taking action against them. The protesters claim that the call to sit down was in response to the police trying to get them off the road. Strangely, despite 19 interviews with protesters, the IPCA didn’t include one comment on the opposing view in their report.

[45] Officers A and B told the Authority that before any information could be gained on the intention of the demonstration, they all stood up and again began to move south along Symonds Street. Officers A and B both told the Authority that when this happened, they believed that the demonstrators intended to repeat the disruption to traffic of 24 May.

[46] The group continued to walk for about 80 to 100 metres south along Symonds Street before sitting down in the road again, blocking one side of the road (see map). Officer A told the Authority that he thought that this second sit down meant that the demonstrators were even “more likely to go into a major intersection and repeat what they had on 24 May and with the associated disruption”.

An alternative finding, at least an opposing view to consider, is that the protesters sat down again because they were concerned about police moves to try and get them off the road. It is much easier to defend your position sitting down.

[158] The Authority is satisfied that Police acted in accordance with policy in carrying out the arrests. Warnings were given prior to arrests in accordance with legislation. Although three out of the four people arrested were discharged without conviction and the other had his case dismissed when they appeared in Court, the Authority is satisfied that the Police did not make unnecessary arrests.

The IPCA report makes brief mention of the arrest of protest leaders post the mass arrests on the road but doesn’t even attempt to consider this when making their finding that the Police did not make unnecessary arrests:

[66] However, after a short distance the demonstrators turned around, returning to a grass bank area near the Symonds Street intersection with Grafton Road. At this point Police identified key leaders as “rarking up” the group and encouraging non-compliance with Police and disorder. Officer A gave instructions for these few people to be arrested, with the hope that if these individuals were removed the group would lose its leadership and disperse.

Protest leaders “Rarking up” the group was suggesting that the protesters continue their march up the road and assert their right to protest.

No reference to precedent

The IPCA report makes reference to the Summary Offences Act 1981 and the New Zealand Bill of Rights Act 1990. Its legal analysis goes no further than noting a few sections from each of these pieces of legislation and then making vague statements about balancing the two. I suspect a 2nd year law student (maybe even 1st year?) would fail an essay with legal analysis as poor as that in the report. There is absolutely no mention of any legal precedent or case law.

The New Zealand Bill of Rights Act was passed 9 years after the Summary Offences Act. Even pre-1990 however there is plenty of legal precedent weighing up the right to protest with offences under other legislation. In the last few years there have been a number of decisions in the Supreme Court, notably Morse v Police and Brooker v Police, that have offered further clarity around the balancing exercise between the right to protest and public order.

That the IPCA didn’t even see fit to address the precedents and how their findings are consistent with them is appalling. A decision by the “Independent Police Conduct Authority” that determines “whether any Police conduct, policy, practice or procedure (which was the subject of the complaint) was contrary to law, unreasonable, unjustified, unfair, or undesirable” sets its own precedent. This is the standard that the police hold themselves to. The police will use this decision as justification for their actions. Future Police actions and policies will be influenced by this decision.

Do we want to live in a country where our right to protest and limits on that are set by the highest courts in the land or do we want it set by Police? Do we want predictability and consistency around the right to protest or do we want the Police to be able to decide arbitrarily when it is or isn’t ok to march up the road?

Media Coverage

My final thought is concern that the IPCA is taken seriously. Its reports carry a false sense of authority, independence and finality. This is clearly showing just in the news headlines from yesterday after the report was released:

• Stuff.co.nz: ‘Blockade the Budget’ protest cops cleared
• NZ Herald: Police cleared over Blockade the Budget protest
• Radio NZ: police cleared of protest brutality