Operation 8: unreasonable, improper, unlawful, illegal, dishonest

Read the complete analysis of alleged Maori terrorism in the Urewera

and that was the police, not the alleged “terrorists”

In my previous posts I’ve been going on about ignorance, racism, paranoia, incompetence, and the lack of intellectual rigour that shaped the intelligence process in Operation 8. The litany wouldn’t be complete without a discussion about honesty, or the lack of it. Police behaviour on Operation 8 has been called unreasonable, improper and unlawful. Illegal is apparently reserved for others. What character trait is it that makes some police officers think that that behaviour, whatever you call it, is acceptable behaviour. Dishonesty?

Bear with me as I make an important point about lawful, honourable and ethical behaviour before I get back to Operation 8.

Lawful, Honourable and Ethical Behaviour

The oath sworn by all police officers is shown below. The oath is administered by the Police Commissioner or by an officer authorised by him (or her).

“I, [name], swear that I will faithfully and diligently serve Her (or His) Majesty [specify the name of the reigning Sovereign], Queen (or King) of New Zealand, her (or his) heirs and successors, without favour or affection, malice or ill-will. While a constable I will, to the best of my power, keep the peace and prevent offences against the peace, and will, to the best of my skill and knowledge, perform all the duties of the office of constable according to law. So help me God.”

The key phrase in that oath that applies here is “according to law”. Each and every constable (i.e. each and every police officer) swears to enforce the law according to or within the law. So help them God of course.

Additionally, “commissioned officers” (Inspectors and above) on promotion to commissioned rank receive their commissions from the Governor General on behalf of the Queen of New Zealand and are held to a much higher standard of responsibility and ethical conduct through their commissioning document. My parchment commission (document) granted to me nearly fifty years ago when I became a commissioned Army officer was the basis of a code of honour and ethical behaviour I and my fellow officers, with few exceptions, upheld. Dishonest or unethical conduct could result in “cashiering”, or the removal of the commission and discharge from the Army (a dishonourable discharge). The parchment commission of an Army officer is a valued possession. It ought to be so for “commissioned” police officers as well and it ought to be the basis for a code of honour and ethical conduct of the highest order.

I don’t have a copy of a police commissioning document but I’m sure that it requires each and every “commissioned officer” to ensure that all policemen under their command properly enforce the law according to or within the law.

A key legal requirement that applies in addition to the oath and the commissioning document is that whereas an individual New Zealand citizen may do anything at all unless it is prohibited by law, a police officer (or any government official for that matter) in the performance of their duties may only do that which is permitted by law. A police officer therefore, regardless of rank or position, does not have any discretionary power to do anything that is not specifically permitted or sanctioned by law.

To do so is to be in breach of the oath and commission, which are the foundations of a police officer’s authority to enforce the law. And to be in breach of the law as well.

There have been many publicly documented instances where both non-commissioned and “commissioned” police officers have acted in breach of those foundations of their authority and responsibility. Yet those breaches often seem to be treated as misdemeanours by the police hierarchy instead of the serious violations of oath and commission that they are. The present police cultural response is denial, cover up and spin which is itself a gross violation of the trust placed in the police force through the oath and commission. Honourable and honest men own up to their mistakes and transgressions.

Men and women of honour would surely live by their oath, or is that an old fashioned concept. Does the oath not mean anything once it has been administered. Is it just a formulaic administrative requirement, sworn and forgotten.

In some ways the culture of denial, cover up and spin bears more resemblance to the Mafia code of omerta than the code of honour one would expect of a police force. There is one intriguing aspect to this and that is the influence of the Police Association in shaping that culture of silence. Would there be a different culture if the Police Executive stood up to the Police Association and broke its power and influence in matters beyond its legitimate concerns of employment, remuneration and conditions of service.

Whereas my approach to conduct and ethics is based on honour, and the need for a code of honour whether written or unwritten, Dame Margaret Bazley’s Report of the Commission of Inquiry into Police Conduct of March 2007 focused in part on the need for a code of conduct. I think that a code of honour is about an ingrained ethical attitude and a code of conduct is a formal more regulatory approach. The code of honour is a compass point towards which all who subscribe to it navigate in all wind, water and weather conditions. The code of conduct is more limited and is about the set of the sail in any particular condition or set of conditions. It is more limited because it is impossible to prescribe a sail setting for every possible circumstance.

In my time in the Army there were two punishable offences that were broad in scope and potentially serious in their consequences.

For commissioned officers the offence was “conduct unbecoming an officer and a gentleman”, which was admittedly quaint and old fashioned but could be used to cashier an officer for any transgression whether against formal regulations or the informal and unwritten code of honour. Simple dishonesty was enough. For non-commissioned officers and private soldiers the offence was “conduct to the prejudice of good order and military discipline”, which was equally broad and undefined but used to the achievement of much the same purpose which was to ensure ethical conduct. The “conduct unbecoming” offence for commissioned officers was by far the more serious of the two for commissioned officers ought to be held to a much higher standard of conduct.

Those offences have been updated in the Armed Forces Discipline Act 1971:

“Conduct prejudicial to service discipline. Every person subject to this Act commits an offence, and is liable to imprisonment for a term not exceeding 2 years, who
  • does or omits any act that is likely to prejudice service discipline; or
  • does or omits any act that is likely to bring discredit on the service of the Armed Forces to which he belongs or, if he is attached to any such service, either to that service or to the service to which he belongs; or
  • negligently fails to perform a duty imposed on him or her by service order, training, or custom; or
  • negligently performs a duty imposed on him or her by service order, training, or custom”.

Still onerous.

Dame Margaret’s report stated in part:

“I was disturbed to learn that the police do not have any code of conduct or guidelines that provide sworn police ocers with clear guidance on what constitutes appropriate behaviour, in particular appropriate sexual behaviour. It is very clear to me that in order to maintain public trust and credibility police ocers need to adhere to high standards of ethical behaviour, both on and o duty, and police management needs to be vigilant in maintaining a culture that supports these standards”.

“There is, at the time of writing this report, no single code of conduct governing all members of New Zealand Police. Instead, a distinction must be made between sworn members and non-sworn members.

“It came as a surprise to me that, notwithstanding the terms of reference, there is currently no code of conduct in place for sworn police ocers. A draft code of conduct was prepared in 2002”

“I was very concerned to learn of the reliance on the police union for its assistance with arranging the departure of unsuitable members from the police. In my view this should be the role of the employer”.

The Office of the Auditor General has the job of monitoring the police implemention of the recommendations of the Bazley Report and reporting annually to Government. The October 2012 report shows that there has been improvement but that there is still much room for further improvement.

The Bazley report contains a long discussion on the need for a code of conduct for sworn police officers, and on the negotiations and development of a draft code beginning in 2001. As at March 2007 (and indeed as at 15th October 2007) there was still no code of conduct in place. The report recommended:

“A code of conduct for sworn police staff should be implemented as a matter of urgency”.

Section 20 of The Policing Act 2008 now states:

“(1) The Commissioner must prescribe a code of conduct for Police employees, stating the standards of behaviour expected from Police employees.
“(2) It is the duty of every Police employee to conduct himself or herself in accordance with the code of conduct”.

A police employee becomes a constable by taking a constable’s oath after the required training.

It is my opinion that the code of conduct approach does not deal with the essential difference between “commissioned” and non-commissioned officers, and the far higher expectations that ought to apply to “commissioned” officers. That higher expectation is surely the reason they are commissioned officers, in addition to their implied higher levels of experience, knowledge, ability, competence and professionalism. Most people, and possibly most police officers, think that the promotion from non-commissioned to commissioned rank is just another step up the hierarchy but it is not. It invokes much higher expectations of professional and personal conduct. If that is not so in the NZ Police then they should relinquish the process of commissioning which was adopted from the military in the first place as a symbol of status.

There seems to be nothing in either the Police Act 1958 or the Policing Act 2008 that actually authorises the NZ Police and the Governor General to confer commissioned status upon officers of the rank of Inspector and above. The Police Act 1958 states “Commissioned officer means any person appointed under this Act as a commissioned officer of Police” but nowhere in the act is there any legislative authority to confer that commissioned status upon any police officer. Perhaps it has just become an outdated symbol of status rather than the solemn invocation of higher expectations.

The Defence Act 1990 does however legislate for the appointment of commissioned officers in the Armed Forces:

“The Governor-General may from time to time:

  • appoint officers to a service of the Armed Forces:
  • in the name and on behalf of the Sovereign, issue commissions under the Seal of New Zealand to officers of the Armed Forces”

The Bazley report also investigated many other aspects of police culture and made several recommendations in relation to cultural change. The police were very slow to implement those recommendations and that was one of the stated reasons for the non-renewal of the contracts of Police Commissioner Broad and Deputy Commissioner Pope beyond their first five-year terms.

All of that is a long and convoluted way of getting to the point about honesty and Operation 8. In the remainder of this post I will discuss the effect of that police culture in four aspects of Operation 8:

  • the use of the media to shape public opinion about prosecutions or potential prosecutions;
  • the deliberate, improper, unlawful or illegal use of warrants and surveillance;
  • the possible illegal use of GCSB; and
  • the unlawfulness of behaviour during the armed paramilitary operation on 15th October 2007.

In Operation 8 the lead analyst Detective Sergeant Aaron Pascoe was and is a non-commissioned officer. He has since been promoted to Detective Senior Sergeant and his next promotion will be to the “commissioned” rank of Detective Inspector or Inspector. His immediate supervisor Detective Inspector Bruce Good was and is a “commissioned” officer. The rest of those involved up the chain of command to the Police Commissioner himself were all “commissioned” officers.

The shortcomings, failures, poor conduct and breaches of the law in Operation 8 were mostly those of “commissioned officers“. That supposes of course that “commissioned officers” in the NZ Police are lawful holders of the Queen’s Commission. Which may or may not be the case.

Use of the media to convict defendants in the public mind before they go to trial

Most defendants are already at a significant disadvantage as they confront the judicial system. The police and the state have enormous financial and legal resources at their disposal compared to most defendants and that gives them a huge advantage before court proceedings begin. Legal aid goes nowhere near correcting that imbalance of power. Justice does not come cheap.

The NZ Police have also built a formidable media, public relations and spin machine which they have used to imprint their version of events on the public mind long before defendants have their say in court. That was the case in Operation 8.

In my opinion it is entirely appropriate that the police use the media to solicit further witnesses and evidence to help them solve crime. It is despicable when they use it to prosecute defendants in the court of public opinion and possibly subvert the judicial process. The “public interest” is no defence whatsoever.

Not only did they mount an aggressive paramilitary operation against Ruatoki, and against two family homes in Taneatua and Manurewa, they simultaneously mounted an aggressive media campaign. The media were on the spot almost immediately, well primed by the police media machine. And although they have denied it, it is almost certain that the police leaked a suppressed affidavit to the media in order to further state their own case in public in an attempt to justify their operation against a whole Maori rural community.

The use of a professional media machine to subvert the process of justice is surely another example of the state’s gradual but relentless erosion of hard won democratic freedoms and rights. At the level of the police officers who individually or collectively plan and authorise such media campaigns it is, at its core, dishonest. It may also be illegal for there is nothing in law that expressly permits them to do it.

In September 2011 a few months before the eventual trial of the “Urewera 4” the police sought and obtained the permission of the High Court to release previously suppressed evidence to the media before the trial. Their stated purpose was that it was “in the public interest”. Their blatantly obvious purpose was to continue what they started on 15th October 2007 which was to imprint their narrative into the public mind before it was tested in a court of law. In particular they wanted to release the video surveillance evidence that was devoid of context, was sensational, and was the key prosecution evidence that they had fought hard to retain as admissible. The pretence that they were motivated by “the public interest” was certainly disingenuous and in my opinion dishonest.

Illegal Warrants and Illegal Surveillance

The Operation 8 intelligence process involved large scale misuse of warrants and surveillance. When you or I break the law it’s called illegal. When the police break the law it’s called improper or unlawful. Unlawful conduct by the police can sometimes be passed off as a mistake, or a misunderstanding of the law. But in this case the police through their own evidence in the High Court knew what they were doing was “unlawful” and they did it anyway.

There’s a number of words for deliberate unlawful police behaviour. I’ll be kind to them and call it dishonesty. That describes the character of the police officers who did the unlawful stuff rather than what they did.

Most of the information for this section comes from court documents including affidavits, applications, judgements, briefs of evidence, indictments and memos. Most of it was suppressed at the time. The full import of the dishonesty of the police intelligence operation was not reported in the media because most of this information was suppressed for long periods of time. There were also a large number of court hearings including bail hearings, applications for stays of prosecution, applications for dismissal of charges, hearings about the admissibility of evidence and hearings about judge alone or jury trials. They involved the District Court, High Court, the Court of Appeal and the Supreme Court. All that before the eventual trial of the remaining four accused.

Keeping abreast of the intricacies of that legal battle over a period of over four years was time consuming and at times confusing. The New Zealand public had no hope of understanding what was going on.

Putting aside the criminal trial of the “Urewera 4” in February and March 2012 the central issue in that legal battle was the admissibility of evidence. The two lawyers general in the battle were Ross Burns for the prosecution and Rodney Harrison QC for the defence. Ross Burns was strategically canny and saved the police from total embarrassment. Rodney Harrison is intellectually astute as one would expect of a QC and had been involved in a review of the Evidence Act. It became obvious that he knew more about evidence than a High Court judge and the judges at the Court of Appeal. It seems he always knew his evidential battle was going to the Supreme Court and the documents he tabled at the various hearings reflected that foresight.

The battle began in the High Court in Auckland in August 2008 and ended, via the Court of Appeal, in the Supreme Court in Wellington in September 2011.

Stating it rather simply there was nothing in law that permitted police to enter onto private property to install cameras including video cameras, to record video on that property, or even to retrieve those cameras. To do so would be to commit trespass. They could also not enter onto private property to conduct a general search for unspecified items rather than for a specific “thing”. The definition of a “thing” in the eyes of the law became a point of much legal debate.

Under Section 30 of The Evidence Act 2006 a judge may through a process of “balancing”, if evidence has been improperly obtained, allow that evidence to be produced in a prosecution if on balance the seriousness of the charge warrants it. There was much legal debate over that “balance”.

The retention of the evidence in question was key to the prosecution case and the police fought tooth and nail to retain it.

In the early stage of this legal battle the police tried to argue that multiply owned Maori land is not private land and that therefore they were permitted to enter onto it without permission from its owners. That specious justification has also been used to attempt to prosecute acts on marae. They were totally defeated in that attempt. It was a weak rear-guard action.

In the first group of hearings in the High Court some of that video evidence was ruled inadmissible because either the warrants to obtain it were improperly obtained or because the surveillance itself was unlawful, or both. Some of it was ruled admissible and allowed. The defence made further applications to the High court to revisit the decision but were unsuccessful.

It then went to the Court of Appeal where the High Court decision was endorsed and the appeal denied. From there it went to the Supreme Court. The Supreme Court decision was the balance of the opinions of five judges who differed in their individual opinions.

There were two classes of defendant by the time it reached the Supreme Court. Four people were charged with various arms offences and with “participating in a criminal group”. The remaining 13 were only charged with arms offences which were lesser offences than the criminal group offence. The Supreme Court found that the evidence in question was unlawfully obtained and could not be entered into the prosecution case against the 13, but that it could, by the balancing process previously described, be used to prosecute the remaining four. It was a partial victory for both defence and prosecution.

Chief Justice Sean Elias stated in her decision:

I regard it as a significantly exacerbating factor that the film surveillance was undertaken deliberately without legal authority, in the knowledge that there was no lawful investigatory technique available to be used”.

In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice”.

Shortly after that determination all charges against the 13 were dropped and only the remaining four went forward to a High Court trial.

Crucial to my examination of the honesty of the Operation 8 intelligence process is the evidence of Detective Sergeant Aaron Pascoe in the initial stages of this four year legal debate. Under questioning he clearly admitted that the warrants in question were improperly obtained and that the surveillance was unlawful. Furthermore he admitted that he knew at the time that that was so. His notes confirmed it. He also stated that he had consulted with his supervisors about the matter at the time. That statement was not backed up by documentary evidence in his notes.

His immediate “commissioned” supervisor was Detective Inspector Bruce Good. Detective Inspector Good has a reputation for, how shall we say it, taking shortcuts. If he did sanction or even initiate the improper obtaining of warrants and the unlawful surveillance he would have taken a giant shortcut indeed and would have displayed dishonest behaviour to say the least, unless of course he himself was ignorant of the law. However we only have Aaron Pascoe’s word that he consulted his supervisors. Detective Sergeant Pascoe was not ignorant of the law. He was just involved in dishonest behaviour no matter how you dress it up as “ends justifying means”. One quasi-legal excuse they tried to run to dress it up was that they somehow had “implied powers”. That failed miserably.

A question that needs to be asked is how far up the command chain that improper, unlawful and dishonest behaviour was known and sanctioned. Did Commissioner Broad and Deputy Commissioner Pope know about it and did they sanction it? Were they among the supervisors consulted by Aaron Pascoe? That is the question.

And if the lead analyst and his immediate supervisor were both involved in that improper, unlawful and dishonest behaviour what else did they get up to? Did anyone present evidence out of context? Did anyone exclude evidence that was detrimental to the police case? Did anyone manufacture evidence? What was the involvement of the Crime Monitoring Centre on Thorndon Quay in Wellington (set up in 2005 by then Detective Inspector Mike Clement) in that improper and unlawful policing? And did all of those “commissioned officers” up the chain of command beyond poor old non-commissioned Detective Sergeant Aaron Pascoe live up to the code of honour or even the code of conduct one would expect of “commissioned officers”.

We will never know for the politicians have prevented any public inquiry into Operation 8, other than an IPCA investigation into the actual armed paramilitary operation on 15th October 2007.

GCSB and SIS Involvement

It has been established that NZ SIS was involved in some way and briefed Prime Minister Helen Clark and opposition leader John Key. It is not known whether or not it was involved in the illegal surveillance or in the incompetent intelligence analysis. Probably not, although its database of information on individuals would have been available to the police and one, maybe two, of those individuals were foreign nationals.

It has been established that the GCSB illegally spied on over 80 New Zealand citizens or permanent residents over the period that covers Operation 8. The investigations into that matter have not (yet) revealed whether some or all of the Operation 8 targets were among those illegally spied on. It does seem probable for it has been established that at least some of their illegal surveillance activity was at the behest of the police. And as we know the police have a record of playing fast, loose and dishonestly with the law in relation to search and surveillance.

The excuse for GCSB’s illegally spying on Kim Dotcom was that they and the police “mistakenly” failed to properly establish his residential status as a permanent NZ resident. One or two of the Operation 8 targets were also foreign nationals and it is possible that the police and GCSB also made use of that to conduct surveillance against them, and whoever was in their networks. So if they spied on the foreign nationals they would have been spying on all of the co-accused as well.

What does need to be investigated, if ever an inquiry into all aspects of Operation 8 is mounted, is:

  • Whether or not GCSB was involved in Operation 8;
  • If it was involved, the nature of that involvement;
  • If it did provide intelligence to the police have the police created a “parallel construction” of evidence to disguise the trail of evidence from GCSB to Operation 8;
  • If the police did call upon GCSB for illegal assistance was the Crime Monitoring Centre involved in that? Was the Electronic Crime Laboratory involved?
  • Is there any formal or informal relationship between GCSB and the Crime Monitoring Centre and/or the Electronic Crime Laboratory?
  • Whether or not anyone is lying about GCSB involvement; and
  • If they are whether Government is itself involved in a cover up of illegal GCSB involvement in Operation 8.

The Armed Paramilitary Operation

With regard to the operation at Ruatoki, Taneatua and Manurewa on 15th October 2007 Te Putatara would need access to the written operation order, if there was one, to determine whether or not the unlawful actions on that day were a deliberate and dishonest disregard for the law or simply an ignorant and immature “Hi Ho Silver” cowboys’ day out at the expense of innocent bystanders including many women and children. The IPCA has of course determined that it was unlawful (i.e. illegal) in many respects.

“ … the planning and preparation for the establishment of the road blocks in Ruatoki and Taneatua was deficient. The Authority has found there was no lawful basis for those road blocks being established or maintained. There was no lawful power or justification for Police to detain, stop and search the vehicles, take details from or photograph the drivers or passengers.

“A number of occupants were informed by Police that they were being detained while a search of the property occurred, despite there being no lawful basis for such detention. Police had no legal basis for conducting personal searches of these occupants.

“The Authority has concluded that a number of aspects of the Police termination of Operation Eight were contrary to law and unreasonable”.

So who was responsible for all that unreasonable, improper, unlawful, illegal and dishonest stuff?

Despite all the media coverage, the multiple court hearings and the IPCA report the only name that has been put to that stuff is poor old non-commissioned Detective Sergeant Aaron Pascoe (now Detective Senior Sergeant). So:

  • Who did sanction the improper warrants and unlawful surveillance;
  • Who authorises the media campaigns that undermine judicial process;
  • Who planned and led the despicable armed paramilitary operation;
  • Who sanctioned the unlawful behaviour during that operation; and
  • Who really knows whether Operation 8 targets were illegally monitored by GCSB.

They are certainly “commissioned police officers” who it seems will never be held to account. Being held to account is perhaps not part of the new code of conduct. That’s covered by another code; the code of denial, cover up and spin.

Links: The Operation 8 Series