Amongst the countries with which New Zealand tends to compare itself – essentially, those that form the Anglosphere – as far as I am aware, we are the only jurisdiction in which decisions by the Police as to whether to charge Police employees (sworn officers and other employees) with criminal offences are made exclusively by the Police themselves.
This is provided for in the Policing Act 2008, s16 of which says, in effect, that the Police must act independently in making charging decisions. Of course, the Police are entitled to, and often do, seek legal advice – internal and external – to assist them with their charging decisions, but, ultimately, the decision as to whether or not charges are laid is one for Police. It would be hard to criticise the Police for complying with the legislation that governs them. If there is an issue, then, it is with the statutory regime itself. Let’s look a little more closely at the process the Police have developed, which I do not doubt complies with the legislation. Whereas charging decisions concerning non Police personnel are made at various levels within Police, as a rule, charging decisions relating to Police officers and other employees are made on the advice of a panel. This is the Criminal Charging Advisory Panel or CCAP. Its members are all senior Police officers or employees.
Whether or not CCAP has sought advice from the Police Legal Group, the Crown Law Office, a Crown Solicitor or otherwise, and whether or not they have the Authority’s views, and whether or not, and to whatever extent, they have brought that material to account in their deliberations, it is the Police who are ultimately responsible for the decision whether or not to charge an officer.
Is this appropriate?
One of the elementary rules of natural justice is that no one should act as a decision-maker in his or her own cause. It is not hard to imagine that Police officers of employees making charging decisions concerning other Police personnel may find themselves conflicted, particularly where for example the overarching interests of the Police as an organisation point to a different outcome from that which might be suggested by a straight forward application of the law. Let me be very clear. I am not suggesting that every such decision made by the Police is tainted. On the contrary, I am confident that that is not the case. But, on any view, the public could be forgiven for having a lingering concern that conflicts arise from time to time, and indeed we are all aware of examples of judgments made by the Police in a range of situations which appear to have been blurred by such considerations.
The importance of the principle that no one should be a judge in their own cause is perhaps best illustrated by the disciplinary regimes that govern other professional groups. Take for example the Lawyers and Conveyances Act 2006 which requires that the primary disciplinary bodies dealing with professional charges against lawyers include lay representatives. The same is true under the Health Practitioners Competence Assurance Act 2003 in relation to doctors, nurses and other allied groups in the health sector and the Education and Training Act 2020 in relation to teachers and others.
I acknowledge at once that the analogy is not perfect because, of course, in those arenas, the bodies concerned are (often) ultimate decision-makers, whereas the Police are entitled to say that all they are doing is assessing whether or not to lay criminal charges and that the courts are the ultimate decision-makers.
However, to acknowledge that is not materially to weaken the point that the regime is almost designed to generate conflicts of interest.
The contrast between the position in this country and elsewhere is stark.
Without going into any detail, in England and Wales, all charging decisions in relation to criminal offences are ultimately the responsibility of the Director of Public Prosecutions and the Crown Prosecution Service. In Scotland (and the Scots usually get this sort of thing right) that responsibility lies with the Crown Office and Procurator Fiscal Service. In Northern Ireland the Director of Public Prosecution’s Office makes charging decisions. The United States is of course the purest example of a federal structure, and the precise position varies from state to state. However, in broad terms, District Attorneys are responsible for charging decisions in relation to alleged criminal offending. The Canadian and Australian systems are also federal – in varying degrees. My research suggests that nowhere in either of these two countries do federal or state police forces have exclusive jurisdiction to make charging decisions.
I don’t pretend to understand why New Zealand is such a stand-out exception in this important – I would say constitutionally important – area. Perhaps it has something to do with our size, and the fact that, historically, there has been a high level of public trust in our Police. But my experience suggests to me that it may be time to consider whether we have got this right.
Without overwhelming this short paper with statistical material, I am aware of more than a dozen cases in the last 12 months where a Police investigation has concluded that consideration should be given to charging an officer, the Authority has agreed, but CCAP have decided that no criminal proceedings are to be commenced. The Police do not generally provide the Authority, let alone the public, with any meaningful analysis of the basis upon which they have reached the view they have in such cases. In a small number of cases, the conclusions have appeared to me to defy law and logic.
I do not believe that a fix is beyond our collective wit. Certainly we do not need to expend vast resources setting up our own Crown Prosecution Service. One obvious approach would involve a differently constituted CCAP, chaired by a retired judge or senior barrister and including lay members. This might or might not require legislative change, depending on the exact role that the new body was expected to play, and of course there would be some modest cost involved. But the benefit would be that the public could have confidence - or more confidence - that conflicts of interest were not distorting decision making in this important area.
Judge Kenneth Johnston KC
25 November 2024