Police justified in not prosecuting GCSB following Dotcom communications interception

17 July 2014 - An Independent Police Conduct Authority report released today on the Police investigation of the interception of private communications by officers of the Government Communications Security Bureau (GCSB) has found that the Police decision not to prosecute was justified.

In September 2012, following revelations that the GCSB had unlawfully intercepted private communications, Dr Russel Norman asked the Police to investigate whether any GCSB officers had committed a criminal offence, and specifically whether they had breached section 216B of the Crimes Act 1961. Seven months later, Dr Norman wrote to the Commissioner of Police asking that his complaint be widened to cover all cases in the past decade where the GCSB might have ‘unlawfully spied’ on people.

On 19 September 2013, Dr Norman subsequently complained to the Authority alleging neglect of duty by Police in relation to their investigation and the findings arising from it.

In releasing today’s report Independent Police Conduct Authority Chair, Judge Sir David Carruthers said the Authority’s investigation had canvassed three matters of concern raised by Dr Norman. These were: the Police reliance on an absence of criminal intent to reach a decision; the appointment of Kristy McDonald QC by the Police to oversee their investigation; and the Police failure to investigate an additional 56, potentially unlawful, interceptions by the GCSB that had been identified in the report to the Prime Minister by the former Secretary to the Cabinet Rebecca Kitteridge.

In relation to the first matter, the Authority found that Police were justified in relying upon an absence of criminal intent to reach their decision not to prosecute.

“The Police decision not to prosecute was based squarely on an opinion provided by the Solicitor-General. Police were quite entitled to rely upon this advice, and indeed, having received the opinion it would have been surprising if they had proceeded on any other basis,” Sir David said.

In relation to the second matter, the Authority found the engagement of Kristy McDonald, QC did not create any conflict of interest and was justified.

In relation to the third matter, the Authority noted that the additional 56 potentially unlawful interceptions by the GCSB that were identified in the Kitteridge Report all related to metadata rather than the content of communications. It found that, since the law was unclear as to whether interceptions of metadata were unlawful, the decision by the Police not to investigate these additional interceptions was also justified.

Sir David said that the Authority had full access to all relevant information. However, its investigation had been of limited scope.

“It is not the role of the Authority to investigate the activities of the GCSB, nor is it our role to determine the accuracy of the legal advice provided to the Police by the Solicitor-General”, he said. “We are solely concerned with examining whether there has been any misconduct or neglect of duty by the Police”.

Full report: 17_July_2014_IPCA_Public_Report__Police_Investigation_of_Unlawful_Interceptions_of_Private_Communications_by_GCSB.pdf

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