Legal Beagle by Graeme Edgeler

89

Terrorism is already illegal

Prime Minister John Key was interviewed by One News Deputy Political Editor Michael Parkin on TVNZ's Q+A this morning, primarily discussing the role New Zealand may play in the campaign against ISIS:

Parkin: On the foreign fighters issue that you mentioned earlier there, you're taking some papers to cabinet tomorrow. What are the options here, what are you looking to change?

Key: So first cabinet tomorrow, and I'm taking a paper that would look at setting up some terms of reference that would say should we make some short term - under urgency - changes to the way we control the rights and authority in this particular area. So if you look at what's happening at the moment, you look at say cancellation of passports: at the moment you can cancel those for 12 months. It's not a criminal act in New Zealand to currently go off shore and fight for a terrorist group. In a country like Australia, it is. 

Now the view of the officials is that there could be deficiency in the current setting we have. Now all of that legislation is going to be reviewed. It has to start by the 30th of June 2015 as a result of some of the changes we made to the GCSB law and the Intelligence and Security Committee law last year. But that will take a good year to work its way through and what the officials are saying to us is that the settings that we've currently got in relation to passports but also in a couple of other areas potentially argue the case that change should take place on a much quicker basis. So we'll spell out those terms of reference tomorrow.

Parkin: So you're looking at a law under urgency to cancel passports for people wanting to be foreign fighters?

Key: So at the moment we can cancel them for 12 months, not necessarily for longer. At the moment we have very little rights if someone says they want to get up and go and fight for a terrorist group. So in Australia for instance it is a criminal act if you're looking to go and fight for a known terrorist group. Now to give you an example, last week there was a New Zealander, a dual passport holder Australian and New Zealand passport holder who had been detained as a result of the Australian law. Now let's say for a moment, hypothetically he went off to Syria and fought for ISIS and then returned: under Australian law it would be illegal, under New Zealand law it would not; so where is he likely to go? And the answer is he's far more likely to come to New Zealand than Australia. Then the question is, what domestic threat does an individual like that potentially pose?

Parkin: And so you'll have the power to arrest that person?

Key: Potentially we would have greater powers and potentially even powers to look at arresting someone under the view that they would undertake what would then be deemed to be a criminal act. So that's a very big step. I'm [not] saying we will take, but what I am saying is that we're going to ask cabinet tomorrow to consider the paper and then ultimately go and look at what are the areas where we think potential change needs to happen very rapidly.

You may have noticed the bits with added emphasis. That's because this is a fact check, and those claims are false.

A New Zealander who fights for ISIS commits a serious crime against New Zealand law. They can already be arrested, they can be charged, and depending on exactly what they did while a member of ISIS, can potentially be imprisoned for life.

The Terrorism Suppression makes participation in a terrorist group an offence. Here's something I prepared earlier, but in short, you illegally participate in a terrorist group if you act in a way that enhances its ability to commit or participate in terrorist acts. While there isn't any New Zealand case law that addresses what this means, it seems to me to be a very low bar. Even if all you're doing is making the sandwiches, you're probably still guilty of this offence (the legal issue that prevented participation charges arising from the Urewera raids wasn't whether there was participation, but whether the group that had formed was a terrorist group, which I'll address with respect to ISIS/ISIL later). Participating in a terrorist group carries a maximum penalty of 14 years imprisonment.

The hypothetical New Zealander John Key describes isn't just making the sandwiches, however. The Prime Minister instead describes people fighting for ISIS. Fighting with a terrorist organisation is clearly enough to constitute participating in that organisation. And depending on what that fighting involves, the charge might be more serious. If that fighting involves:

  • trying to kill or seriously hurt people;
  • in order to induce terror or force governmental action or inaction;
  • in order to advance an ideological, political or religious cause

Or if that fighting involves:

  • trying to kill or seriously hurt civilians
  • during an armed conflict;
  • in order to induce terror or force governmental action or inaction

Either of which most people would think was being described when the Prime Minister discusses someone who "fought for ISIS". Then what that person is doing isn't just participating in a terrorist group, but is committing a terrorist act, and can face life imprisonment.

While most of our criminal laws only apply to actions in New Zealand, both the offence of committing a terrorist act and the offence of participating in a terrorist group have extra-territorial effect, meaning that if you are a New Zealand citizen, you are breaking the law and can be charged in a New Zealand Court wherever you are when you commit a terrorist act or participate in a terrorist group.

The offence of committing a terrorist act is committed any time a terrorist act is committed, but there is an additional element of participation in a terrorist group. The group you're participating in must be a terrorist group. This is the aspect that seems to have troubled the Solicitor-General when he declined permission to charge those arrested during the 2007 raids.

The Terrorism Suppression Act allows the government to designate terrorist entities. While New Zealand has not designated Islamic State (or ISIS or ISIL) as a terrorist entity, this is because it doesn't need to. Under the definition of designated terror entity in section 4, New Zealand automatically includes what we term United Nations listed terrorist entities on its list. UN listed terrorist entities are those organisations designates as such under UN Security Council resolutions 1267, 1333, and 1390, which relate to the Taleban and Al-Qaida.

The UN helpfully provides a list. And the Islamic State is on it. And just to be sure, the New Zealand Police have a list as well (.pdf). And ISIL is there too: in both places, listed as an alternative name of Al-Qaida in Iraq.

Strictly speaking, given that there is no doubt that ISIS commits terrorists acts, it isn't necessary for it to be listed, as the law applies to unlisted terrorist groups, if you can prove they are terrorist groups. But if the Prime Minister is unsure whether the UN designation is sufficient, and he wants to absolutely certain that New Zealand could arrest returning ISIS fighters, he doesn't need a law change, especially one under urgency, he could simply exercise his powers to designate ISIS as a terrorist entity.

We do not know exactly what the Government is considering doing in its urgent review of the law around foreign fighters. Tomorrow's post cabinet press conference may not enlighten us further. But if we are told that a law change is needed in order to arrest New Zealanders returning from fighting for ISIS, we are being misled.

New Zealanders who fight for ISIS break the law. They commit serious crimes over which New Zealand asserts extra-territorial jurisdiction, and can already be arrested, detained pending trial, and locked up for long prison terms when convicted.

36

Election 2014: The Special Votes

We have a provisional result, and now await the official result after special votes are counted. Special votes are:

  • those cast overseas;
  • those cast on polling day by people voting outside their electorate;
  • those cast by people who enrolled after the printed electoral roll was closed;
  • those cast by people on the unpublished roll; and
  • those cast by people who think they’re on the roll, but aren’t (these votes don’t count).

The final result is due on October 4.

At the last election, I conducted a quick analysis of the provisional results to try to determine how the special votes might change the makeup of Parliament. I wasn't sure that the time whether it would work, but I was pleased with how accurate it was.

I have no particular reason to believe that the effect of special votes will, at this election, mirror the effect in the 2011 election. The advance votes certainly didn't. But we have little else to go on.

That said, adopting the same method I used last time, based solely on how special votes broke in 2011, along with the Electoral Commission’s estimate of the number of special votes at this election, I predict the following final result:

  Preliminary   Estimated  
National 48.06% 61 47.24% 61
Labour 24.69% 32 25.05% 32
Green 10.02% 13 10.50% 13
New Zealand First 8.85% 11 8.52% 11
Māori Party 1.29% 2 1.38% 2
ACT 0.69% 1 0.68% 1
United Future 0.22% 1* 0.21% 1*
Conservative 4.12% 0 3.92% 0
Internet MANA 1.26% 0 1.38% 0
    121   121

That's a pretty boring table, as it happens. If the projection holds then, unlike in 2011, it seems like there will be no change. No party does well enough on the specials to take a seat of another party.

In 2011, the Green Party did ~38% better during special votes than it did on the preliminary count, and the National Party did ~13% worse than on the night. That was enough for the Greens to take a seat off National. If the same happens this time, it won't be. For the Greens to gain a seat on the special votes this time, their support among special votes would have to be ~42% better, or National's ~16% worse (or some combination of the two). Could this happen? Sure. But based on the information we have, it's not nearly as likely this time 'round.

In 2011, the Greens were closer to get that extra seat that they are this election. They have more ground to make up this time, and no other party in contention historically does well enough on the Special votes to make up the gap they face either. History suggests there will be no change this election.

21

Election 2014: the no threshold counterfactual

As I have done on election night of the last two elections, I present below the New Zealand House of Representatives, had the election been conducted with no threshold: 

National – 57
ACT – 1
United Future – 1

Conservatives 
– 5

New Zealand First – 11
Maori Party 
– 2

Labour – 30
The Greens – 12
Internet MANA – 2

(total 121 MPs)

Obviously, if the rules were different, the vote would be different. I make no claim that this would have happened (almost certainly, it would not have), but I think it's interesting to look at it anyway.

14

Crown appeals in criminal cases

While the Crown has a lot of advantages in the criminal justice system - the resources and powers of the police foremost - many aspects of the system, are tilted in favour of a defendant - for example, the requirement that the Crown prove charges beyond reasonable doubt before there is a conviction.

Another part of the criminal justice system that has long favoured the defence is the appellate system. This isn't to say appealing is easy - once a conviction has been entered, the courts are very reluctant to interfere - but defendants, at least, have a right to appeal, and as a general rule, the Crown does not. If you're acquitted, that's almost always the end of it.

We have changed the law around this in recent years. We have allowed the Crown to reserve a question of law during a trial, a procedure that saw George Gwaze face two jury trials, resulting in not guilty verdicts both times.

We also created a limited power for the Crown to appeal where they think that a judge got the law wrong in throwing a case out before it gets to trial, whether by discharging the accused, or by staying a prosecution. This came up recently in the Red Devils case, where Justice Simon France had  granted a stay of prosecution after police forged court documents to bolster the credibility of an undercover officer. The Court of Appeal overturned that stay of prosecution, and the case is presumably going to trial.

And, for a while now, the Crown has been able to seek permission from the Court to appeal against sentence. It doesn't do this often - the decision is always made by a senior lawyer in the Crown Law Office, not even Crown Solicitors - but it seems to be doing it more often than it used to (I haven't actually OIA'd to check whether this is true). This has come up recently, with the prosecutors of those who assaulted Stephen Dudley asking the Solicitor-General to appeal the decision of the High Court to enter discharges without conviction.

A decision to discharge without conviction is different from a decision to discharge someone before trial. The power of the Crown to appeal a discharge before trial does not allow the Crown to appeal a discharge without conviction. A discharge before trial involves a judge throwing out a case (usually because there is insufficient evidence to establish one of the elements of a charge), a discharge without conviction is something that happens in place of sentencing.

The Crown can challenge a discharge without conviction. It has done it in some high profile cases, including, for example, "the comedian". However, it does not do this by an appeal, but by judicially reviewing the decision. The Crown can appeal a sentence, but a discharge without conviction isn't a sentence and without a statutory power to appeal, you can't appeal (I looked at an example of this with John Banks' judicial review).

Which brings us back to those who assaulted Stephen Dudley. The prosecutor asked the Crown to consider appealing or reviewing the decision. The Crown's decision has been reported in a number of different misleading ways. It has been stated that "appeal bid fails", and that an appeal has been "denied".

But there has been no appeal. The Crown does not have the power to appeal a discharge without conviction. There can also be no judicial review. The Crown can sometimes judicially review a decision to enter a discharge without conviction, but there is a very important distinction between the cases where it can do that, and the case here, of the assault that preceded the death of Stephen Dudley. The discharges without conviction that can be judicially reviewed are those entered by District Court judges. And because the assault charges involved here started as manslaughter charges (which were dropped when the Crown accepted it couldn't prove what caused Stephen's death), the case was heard in the High Court. And you can't judicially review a High Court Judge.

This was not a case where the Crown decided not to appeal, or decided not to review a decision it disagreed with, it was a case where it realised it had no power to do that even if it wanted to.

I'm not convinced that the law changes extending appeal powers to the Crown were necessary or good. But I can't see the law in this case as anything other than an anomaly. If the Crown can seek leave to appeal a sentence imposed by a High Court Judge, the distinction that means it would be wrong for it to be able to seek leave to appeal an order imposed in place of a sentence eludes me. I am not sure I disagree with the decision of Justice Winkelmann to discharge the two people who admitted assaulting Stephen Dudley without convictions - it seems to be a decision that was open to the judge in the circumstances - but if the Crown thinks she got it seriously wrong, I can't see a proper basis to prevent them from taking the case to the Court of Appeal. The law does not currently allow this, but if the Crown is to be permitted to seek leave to appeal a sentence, then the law should allow them to challenge a discharge without conviction as well, whether entered in the District Court or the High Court.

40

Suicide Reporting; or, The System Doesn't Work

Back in January, Edward Livingstone shot and killed his son and daughter, before turning a gun on himself, taking his own life.

It was, unsurprisingly, a major news story, raising questions of high public importance over police and court responses to breaches of protection orders, and more recently, to information sharing with Australia.

I fielded a few questions on twitter on legal matters related to the case, like why is someone who is the subject (object?) of a protection order allowed a firearm? [They aren’t.]

There was some somewhat ill-informed discussion about a few issues, and I thought, given what had happened, there might be aspects of it that could benefit from having bits of the law laid in public view.

I was reluctant, however, to discuss the case more than obliquely. Section 71 of the Coroners Act imposes restrictions on the reporting of self-inflicted deaths. How, for example, do you discuss the consequences of protection orders on firearm ownership, without giving a pretty good steer as to method of death?

In the best traditions of journalism, the news media ignored the legal restrictions, reporting the facts, while – from what I saw – avoiding unnecessary sensationalism.

I like to think that if I edited a newspaper or produced a news bulletin, I'd do the same, and damn the consequences. But, while I think that some of what I write here qualifies as journalism, I am a lawyer, and didn't feel like pushing that boundary.

This was another aspect of the event that is noteworthy: despite laws restricting the reporting self-inflicted death as such, there was breaking news, with a high public interest, and (most of) the major news organisations in the country said, in effect, stuff the law, this is important, we’re journalists, this is journalism, and New Zealanders deserve to know what has happened.

And I say good for them. But not for me.

Section 71 of the Coroners Act provides:

71 Restrictions on making public of details of self-inflicted deaths

(1) No person may, without a coroner's authority, make public any particular relating to the manner in which a death occurred if—

(a) the death occurred in New Zealand …; and

(b) there is reasonable cause to believe the death was self-inflicted; and

(c) no inquiry into the death has been completed.

You will note that it doesn’t provide for a total ban on reporting information about a self-inflicted death. Rather it places a requirement to obtain permission from a coroner before reporting how a death suspected to be self-inflicted has occurred. There’s a bit of debate about what is actually banned, which Steven Price has blogged on. I tend toward Steven’s view, that the prohibition extends to references to a death being a suicide, and not merely to information describing the manner of a self-inflicted death (by gunshot, for example), but this is something we are probably unlikely to have determined until a prosecution is laid, and I can’t recall the last one of those. For the media who have reported on Edward Livingstone’s death, it isn’t relevant anyway, as they’ve described both.

Despite the legal complications of writing about the events, there were still aspects of the case I was considering writing about (particularly around the reporting of it), so with both the conservatism of a lawyer, and the curiosity of a journalist, I set about attempting to do so legally.

I recalled some information from the Chief Coroner that Steven Price had relayed through his blog Media Law Journal:

The law allows the media to seek permission from the coroner to report the details of an apparent (or confirmed) suicide. Last night, I asked Chief Coroner Neil MacLean how often the media sought such permission. He said it was extremely rare. How often had they asked him for reporting permission, during his 30-year career as a coroner, I wondered.

He said: never.

Well, that a few years ago now. Though reasonably confident this is unlikely to have changed, so many news organisations had run stories on the deaths in the blaze of publicity, I thought I’d check whether anyone had, and asked how one would go about getting authority from a coroner to publish particulars.

The murder-suicide occurred on the evening of Wednesday 15 January. It was major news on the 16th, and having seen it across a range of media that night, around lunchtime on the 17th decided that I would – as a blogger – seek authority to publish on the deaths.

Even to a lawyer, it’s not immediately obvious how one goes about this. I didn’t completely rule out that a formal application filed in court would be required. However, I hoped this would not be the case. Approaching it as a media person might, I went to the website of the Coroner to seek out contact information. It’s here. I saw that there was a “media centre” page, and thought, ‘hey, that’s me! (today anyway)’. It carries information about access to inquests, and notes that “media should also be aware of the reporting restrictions required by the Coroners Act 2006 when it comes to self-inflicted deaths.” but does not mention that consent can obtained, or provide for the process to do so. It concludes: “The media contact can be found here: justice.govt.nz/media”.

Unfortunately, it can’t. There is media contact information, but none obviously connected to the Coroners Court.

The page does carry some information generally useful to journalists: for example, there’s a form for applying to photograph, record or film in Court. There is also a document explaining the various statutory prohibitions on publication that apply under different laws; oddly, this makes no reference to rules around the Coroners Court, or reporting of suspected self-inflicted deaths.

There is also a media guide. The media guide includes information about the Courts and protocol, and a number of other things that might be useful for journalists to know. The first place I looked for information about the Coroners Court was in the section on the Coroners Court. I was somewhat surprised that it made no mention of reporting restrictions at all, which would seem important information to the media, but then noticed a later chapter headed “Courts with special media provisions”, and guessed there might be something in there. It included this description of the rules that apply to the Coroners Court:

Media may publish any information that they hear except in relation to a suicide. The Coroners Act 2006 restricts details relating to a suicide from being made public without a coroner's permission. Only the name and age of the deceased may be made public before the publication of a coroner's finding. After a coroner's finding (if any) has been released, only the name, address and occupation of the person concerned and the fact that the coroner found the death to be a suicide can be made public without a coroner's permission.

I’m interested in the views of non-lawyer readers, but if that was all I had to go on, I think I would conclude that permission to report on further details about a death believed to be self-inflicted was something that could only be sought after an inquest had finished. The description appears to contain four basic points:

  • There are special rules around the reporting of suicides.
  • These rules restrict what you can publish without permission.
  • Before a coroner has made a finding, you can only report the name and age of the deceased.
  • After a coroner has made a finding, you can request permission if you want to report more than the name, address, occupation, and mere fact of a finding of suicide.

And still, no information on how, exactly, one goes about getting permission to publish details. And, of course, no clear contact point for journalists (or anyone) approaching the Coroner’s Court for that permission. So, instead of going to the Coroner’s Court page on the Ministry of Justice website, I thought to look for the information is on the Courts of New Zealand website. It isn’t there. There are sections for the Supreme Court, the Court of Appeal, the High Court, and the District Court. There’s a promising-sounding section for “Other Courts”, but this only lists the District Court, Employment Court, Environment Court, Family Court, Maori Land Court and Tribunals (this takes you to a page on the Ministry of Justice which lists 30 tribunals, in which the Coroners Court is (accurately) not included).

Luckily, I noticed the contact a court button in the footer. (I say ‘luckily’, but not really). It took me to a list of courts (unhelpful, because the Coroners Courts aren’t there), but the page includes a “media enquiries” button. There’s a name and contact details for the Judicial Communications Advisor, but also a note:

Note regarding media enquiries

  • The judicial contact is for enquiries to the judiciary only.
  • Enquiries relating to court proceedings, including requests for court documents, need to be directed to the appropriate registry.

I’m pretty sure an inquest will count as a court proceeding, so this is rather unhelpful, given the Courts of New Zealand website barely recognises the existence of Coroner’s Courts, let alone lists registry contacts.

I headed back to the media contact page on the Ministry of Justice website, and knowing that the Chief Coroner is also a District Court Judge, decide that the media contact person for the District Court is my best bet. Ultimately, they weren’t the right person, but I explained the lack of clarity, and asked for their assistance, and it got through to someone who was able to “help”.

My email was in pretty simple terms:

Are you able to confirm whether any media have sought coronial permission to report on the recent shooting deaths in Dunedin?

And can you advise the process for seeking permission? I'm considering writing a post about the reporting, and would prefer to be able to mention the events directly if possible.

This email was sent around 1:45. Two minutes later I got a reply. I had approached the wrong person, but it had been forwarded on.

The person it was sent it to seems to have forwarded it to a third person, and at 4:10 I was sent the reply to my query:

Hi Graeme - your message has been forwarded through to me. I am not aware if the Coroner has given any direction to media in this case. I suspect he has not but cannot say for sure. I cannot get hold of him at the moment. The reporting of suicide is covered off in ss71 to 74 of the Coroners Act 2006.

I responded around 25 minutes later:

thank you for the reply. It was section 71 of the Coroners Act that made me ask the question, particularly the bit which says "No person may, without a coroner's authority, make public any particular relating to the manner in which a death occurred ...". I wondered if anyone had sought a coroners authority before reporting on the case, rather than whether a coroner had given a general direction, as has happened sometimes in the past.

In light of this, and the possibility I may want to make public a particular (as defined in the act), I was hoping someone could point me to how I would go about getting the coroner's authority to do so. Sections 71 - 74 of the Coroners act don't appear to say.

I had a reply within 15 minutes:

Hi Graeme - I think the best way to do this would be to put it in writing and send it my way. I will forward it to the Coroner's case manager. Feel free to give me a bell if you have any questions. I am about to duck off for the weekend, and will be back at my desk on Tuesday.

And I responded 8 minutes later:

thank you for the quick response. Brief request follows:

I write a blog that frequently deals with legal issues, and am considering writing a piece looking at the reporting around the recent deaths in Dunedin, which have been reported in a range of media. I am aware that section 71 of the Coroners Act limits what can be published, including on the Internet, about suspected suicides. I request authority from a coroner to include information about the particulars of the death in question. I consider they add to the legitimate public interest in the story, and to the reporting of around these deaths.

I called as soon as I pressed send at 5:00pm, but didn’t get through to anyone. I think I left a message saying I’d sent an email, but it was several months ago now, and can’t be sure.

The following Thursday, six days later, I followed up:

Hi [Name Removed],

just thought I'd follow up to see where this was at.

I got the reply the following morning:

Hi Graeme - I forwarded to the Coroner's office - feel free to follow this up directly with [Name Redeacted] in the Dunedin office (CC'd into this email).

I waited a month. On 24 February, I followed up again:

[Name Removed] advised that he forwarded my email(s) to you a little while ago now, so I thought I'd follow up to see if anything came of it.

And on April 1, when the release of the Law Commission report reminded me I had sent these requests, I wrote again:

Hi [Name Redacted] (and [Name Removed]),

with the release of the Law Commission's report on suicide reporting, I was reminded that I sought permission under the Coroners Act a while ago to publicly discuss a presumed suicide, do either of you have any idea where my request is at?

Many thanks

Eight minutes later, my original contact replied:

Hi Graeme - I'll chase this up and get back to you.

A little under three hours after this, I received a memorandum from Coroner Richard McElrea. I was initially prohibited from republishing it, but have sought permission to quote from it (more on this later). It states in part:

4. I have insufficient information to grant any order pursuant to section 71, Coroners Act 2006. I invite further information to allow me to consider this further. I suggest that the applicant supply a selected passage or passages from the proposed “blog” relevant to section 71 and relating to the death of Edward Hamilton Livingstone.

5. I also request a timeframe as to when the applicant proposes to publish the material in question. I will endeavour to respond within 14 days of receipt of any such information.

6. Pending completion of my inquiry I prohibit publication of this memorandum and any further memoranda issued.

7. The email address is csu.christchurch@justice.govt.nz.

I was in contact with media contact people within the Justice system in the aftermath of a major news story. My emails were generally replied to quickly, yet after almost three months, the best I could get was a request that I forward an article I wasn’t even sure I could have permission to publish, to a coroner who would try to respond within 14 days.

With work, and life, it took me a little while to complete this post. Well, not that long, I completed it just under six weeks later, and forwarded it to the Coroner on 4 May, with some arguments as to why I thought I should have permission: the information was already in the public domain, the risk of harm was low, and there was a substantial public interest in how the system of seeking permission under the Coroners Act operates.

It is, of course, now 20 June. It’s taken a little longer to get the final permission needed.

I got the first reply to my 4 May request on 12 May, from registry staff. On 22 May, the Government released its response to the Law Commission’s Report. I’d lost my opportunity to publish while there was a chance to influence the Government’s response, but I sent a quick follow-up:

I write further to my requests of 17 January, 1 April, and 4 May (resubmitted on 12 May). I note that the Government has today released its response to the Law Commission's Report on Suicide Reporting, tabled last month, and announced its intention to amend the Coroners Act. I consider my intended blog post would be timely in light of this, and would like to publish it soon, so I seek your urgent consideration of my request.

A week later, I got a response:

Good afternoon, Coroner is currently unavailable and we expect him in his Chambers later next week.

I have forwarded your earlier reminder but I cannot comment on Coroner's timeframe for response.

And 11 days later (9 June, if you’re keeping track), I had a memorandum from the Coroner answering my request:

I have received a further message from Mr Graeme Edgeler.

Ruling

1. My prohibition of publication remains including details of the csu. Christchurch contact address.

2. Application in terms of s71 is declined.

[Signed]

Coroner RG McElrea

Almost five months spent trying to republish publicly available information, and not only was I prohibited from publishing the details of Edward Livingstone’s death, and prohibited from quoting from the ruling suppressing that, but I was now prohibited from telling you about the existence of a Coroner’s Court in Christchurch.

I guess this should probably have been the lede.

The Coroner has a website. Some of the information I was prohibited from telling you is on that website.

A little taken aback that a court could supress its own existence, I sat on it a couple of days, and asked some friends what they thought: would I have to judicially review the decision in the High Court? They advised me better of it, and I wrote a letter to Coroner McElrea asking him to reconsider. That was 12 June. On 16 June, I got a reply from my media contact point (that’s “[name removed]” for those keeping track):

Hi Graeme - I'm just letting you know the Coroner is unavailable for the next five weeks.

Still not really wanting to take the case to the High Court, I wrote to the Chief Coroner, Judge Neil McLean. I wasn’t particularly hopeful that it would get me somewhere (heads of bench can’t direct other judges), but it seemed worth a go. I sent my letter by email overnight on Tuesday, and on Wednesday afternoon, I had a very thoughtful email back, with not only the Judge’s explaining some of his views on suicide reporting, but also some cause for hope:

As you know while I have a duty of "oversight" of the Coroners as independent judicial officers I cannot direct them as to what to do in an individual case.

To cut to the chase if you would like to let me know what you would like to publish I am happy to explore options for dealing with this.

It was quite nice to be asked.

I sent my draft blog post overnight, and got permission yesterday morning. I’m not sure quite how it worked. I updated my post last night, and here we are. The Chief Coroner even included a note:

Very thoughtful piece. I am happy to authorise you publishing this via your blog post.

I think the points you make are valid and worthy of discussion.

That was very thoughtful, but the process suggested has left me somewhat discomfited. Some of what I write here, I think of as law, some as scholarship, and occasionally, I see it as journalism. Although I have felt constrained by the fact that I am a lawyer, this was one of those journalism times, and I’m not a fan of submitting my work in advance to someone effectively acting as a government censor. That this sort of prior restraint is apparently involved in applications under section 71 of the Coroners Act may provide a partial reason why news media are loath to use it.

I cannot claim that my experience is typical, although, of course, it may be archetypal if the experience the Chief Coroner relayed to Steven Price is indicative (I asked in my email to him, he didn't have an update). However, I am going to extrapolate from it anyway. The system does not work. And I do not see that any system of seeking advance permission to publish details in high profile cases like this one can work. The idea that news media will provide live coverage of an armed siege, like that ending in the self-inflicted death of Jan Moleenaar, that it will reach its end, and the news will announce: “the siege is over; we will tell what happened in 14 days” is laughable. There will always be cases where the speed with which the information needs to get out and the importance of particular information to a particular story (for example, where the self-inflicted death ends the need for a suburb to be in lockdown), will mean that the law will not be followed. It shouldn’t take five months. I’m not sure it should take five hours.

I’m not aware of any prosecutions for breaches of the Coroners Act such as those that appear to have occurred in this case (the Law Commission isn’t either). It seems unlikely that there will be any in respect of the multiple reports of the death of Edward Livingstone. And I am not sure we will ever actually use the criminal law to enforce the prohibition we currently impose, or may re-impose if the Law Commission’s proposals are adopted.

The Law Commission’s report has the heading “Media Reporting of Suicide”, but its proposals are not limited to news media, covering new media like Facebook as well. And as ineffective as the current prohibition is in proscribing the behaviour of the most news media in high profile cases, it is even less effective in proscribing behaviour beyond the news media. In blog comments, and on TradeMe forums, people discussing high profile news stories are less distracted by legal restrictions like the Coroners Act than news media.

I have never felt the need to comment on the Facebook page of a friend who has died. But I do not suppose that my way of dealing with loss is the way everyone else should adopt. And I certainly do not want to criminalise others’ grief if, following a self-inflicted death, some people come to terms with it in ways involving the publication of the fact of suicide or some of the details, on their friends’ Facebook walls or their own.

That the law will not likely be *enforced* against people posting on the Facebook wall of a dead friend is not enough. If we are going to continue to prohibit some categories of Facebook mourning where the prior permission of the Chief Coroner has not been obtained, then the system for getting permission needs to work. People should be able to call the Chief Coroner for free to discuss (and seek permission to publish) Facebook comments before they post them, and the Chief Coroner should be available at all times to enable this. The law prescribes how people may grieve. No-one should have to wait until office hours to be able to do so lawfully.

I accept that the evidence shows that publication of details around suicide often precedes an increase in attempts. There is therefore a societal interest in limiting the wide public dissemination of harmful information about a suicide. But even if it is true that heightened publicity of a suicide leads to further attempts, I am not sure I would ever want to use the criminal law to enforce society’s interest.

I anticipate that the major concern about copycat attempts arises from publication in broad-reach media like newspapers, radio and television (the Law Commission notes that the evidence in respect of new media is weaker, or absent). If this is so, then the criminal law is not the only solution. This is, helpfully, something that the Law Commission addresses, and I’m quite pleased to have come up with it independently.

The Ministry of Health has published guidelines on reporting about suicide. The Law Commission recognises that these have been problematic, and recommends change to encourage more buy-in from the media, but I see no reason why appropriate rules adapted from those guidelines could not be dealt with in Broadcasting Standards, or the Rules of the Press Council. If the Broadcasting Standards had a rule that, in the absence of a finding from the Coroner, broadcasters should refer to a suspected suicide and not to a suicide, I anticipate that it would be followed (or, at least, followed as stringently as the other prescriptive broadcasting standards, which is most of the time, with the occasional slip-up). Would this not achieve the Commission’s principal aims?

Why the Law Commission considers that the non-punitive regulatory approach will work for dealing with issues around public discussion of suicide in general, but the threat of criminal prosecution is needed in respect of specific deaths is a little baffling, especially given the Commission notes that we are the only country to involve the criminal law.

One reason might be that the regulatory approach, through the guidelines, or broadcasting standards, doesn’t address public behaviour generally: it affects academics, and journalists, but not Facebook mourners. To affect them, you pretty much need the criminal law. But that seems unlikely to be the advantage the Law Commission seeks by using the criminal law, given the likelihood of prosecution, and the lack of knowledge of the law.

In explaining its view, the Law Commission notes

… there is a risk that such public comment may influence the evidence of witnesses to the coronial proceeding. Public reports that a death was in fact a suicide may affect a witness’s evidence by making that person either more confident or less confident in their recollection of events. We note, however, that in Beckett v TV3 Network Services Ltd Robertson J was not persuaded that a television broadcast prior to a coronial inquest would be likely to affect the recollection of witnesses to that inquest. He held that the plaintiffs had not demonstrated that “the integrity of that process might be affected by what was contemplated by the defendant”.

Beckett was not a case of suicide, but we agree the effect on witnesses is likely to be similar. Reports that a death was in fact a suicide are unlikely to have a significant impact on a witness’s recollection of events at a coronial inquest. The greater harm in this case is to the integrity of the coronial process.

However, the protections afforded to the Coronial process in respect of its decisions over self-inflicted deaths are not afforded to other inquests, including, in this case, into the deaths of Livingstone’s two children. There is no statutory prohibition on saying that a death as a result of a police chase was caused by alcohol-affected driving, or overzealous policing. Coronial inquests into high profile deaths like those in the CTV Building, or at Pike River or Cave Creek, do not benefit from the protections applied to self-inflicted deaths, and which apparently risks undermining the coronial process. If the Coronial system is threatened by public Facebook grief, or the premature drawing of conclusions in a specific category of cases on TradeMe message boards, then the issues this raises over the reporting of self-inflicted deaths probably aren’t its most pressing concerns.

The threat to the integrity of the Coronial system, such as it is, is not from Facebook posts. And I’m not sure there’s much of a threat from media reports either. That, apparently (I haven’t checked, but am prepared to take the Law Commission’s word for it), no other country in the world uses the criminal law in this way to protect their coronial systems, strongly indicates that the integrity of coronial systems can be maintained without creating state censors, or threatening prosecution for journalists who wish to report their own conclusions.

The Law Commission recommends a relaxing of the rules around the reporting of self-inflicted deaths (before a coronial finding, you would need permission to publicly refer to a suicide, but could call a death a suspected suicide). There are good reasons to refrain from making claims without convincing evidence – not least because it is dishonest to imply false certainty. However, we abolished criminal defamation a good many years ago, and the effect of this is essentially to impose criminal liability for one very specific category of defamation. You cannot defame the dead, except it seems, if you miss the word suspected in front of the word suicide. And this defamation is punishable by a criminal conviction.

The Law Commission report is really pretty good, but the reasons it gives for proposing the continued oversight by the criminal law of suicide reporting are weak: our coronial system is not so fragile to need state censors to allow it to reach final conclusions unmolested by journalism. Coupled with the problems inherent in a law that requires prior permission for the posting of Facebook comments, I cannot see that it is likely that this is a law that the Commission actually wants to work in the form it proposes.

In light of the swift resolution of my request over the last couple of days, I am hopeful that the proposed law, which would place the power to decide on all requests for permission with the Chief Coroner, will see requests dealt with more promptly. The law doesn’t work in theory, but given the extent to which it is likely to continue to be ignored, it may work in practice.

I don’t think that’s quite good enough. As a society, we fall upon the criminal law far too often as a ‘solution’ to a societal issue, without asking what involving the criminal law in an issue actually means. The dissemination of details of self-inflicted deaths can have serious consequences, but does a criminal law – especially one police seem to have no interest in enforcing – actually help? And if we are really concerned about publicity around self-inflicted death, what benefit is a law honoured in the breach?

I have opened the comments on this post. My preference is for any discussion to focus on the general issue. If you do feel compelled to comment directly on the death of Edward Livingstone, you can seek permission from the Coroner. Contact details are on the website. I would prefer that anyone who wants to comment directly on Livingstone’s death do so elsewhere, just know that if you want to do so legally, permission is required. Please do not publish anything illegal.