Legal Beagle by Graeme Edgeler

4

Update: Coroner's investigation

My post "Breaking News: Man Shot by Police; or the $600 tweet" has been picked up in the media. Police had not previously confirmed that Mr Červeň was unarmed when shot and the news that "The Coroner has ruled that there is currently reasonable cause to believe the death was self-inflicted" is also new, although it is important to note that is "in no way a concluded view on the matter."

My guess is that a Coroner would almost never release a tentative finding in such a way, and would not have had I not sought a High Court review of the refusal to let me publish. A coroner has previously found that a police shooting death was self-inflicted, but that finding was a concluded view, released at the end of the inquiry into the death.

The odd thing is, I wasn't seeking to break actual news. I did not ask the Coroner to release information, and certainly did not expect to cause the release of even obvious preliminary findings. I just wanted to lawfully report the information that Police had provided to the media at a press conference. I thought the public had a right to know a man had been shot and killed by police (and that police had admitted this), and didn't want to break the law when I relayed this information.

I think that, when there is a Police shooting, police ought to release information like "no weapon was found on the deceased", once they have reached that view, but I was not asking or expecting the Coroner to do it for them. That's just not something Courts do.

The coverage shows one of the problems with the entire process of seeking permission to make public particulars of death. In a position where they have to give "authority" to news coverage, the Coroner may be unwilling to give authority to publish information that doesn't meet the standard of a judicial finding. But that is not the standard to which the media aspires: initial reports can be incomplete, or the media can accurately report a witness who provides a statement that turns out to be misleading. In events like a shooting death, news coverage can fairly include conflicting statements without concluding which (if any) is accurate. If coroners are to approch applications for authority to release information in the same way that they approach inquests, then the system cannot work.

In the end, I got to do more than simply release (lawfully) information that was already released, but actually got to break news, as I was released a Coronial finding not automatically made available to other media. This is odd in itself. It may be appropriate that media or the public should be able to apply for a release of preliminary findings or tentative views by a Coroner, but the way the law is written, this is a power that is limited to cases where the Coroner may be able to find a death to be self-inflicted. In other high profile cases, the way you would do this is unclear, and you wouldn't have a statutory right to go to the High Court to challenge a refusal.

I'm not particularly hopeful, but with some luck, Parliament will be able to fix this when the Coroners Amendment Bill comes up before the Committee of the Whole House. Of course, as was pointed out in the comments to my earlier post, removing the new prohibition on reporting overseas suicide bombings is probably a higher priority.

14

Breaking News: Man Shot by Police; or the $600 tweet

On the evening on Sunday 2 August, Police shot and killed David Červeň in Myers Park. He died at the scene. At a press conference the following day, Superintendent Richard Chambers, the Auckland City District Commander of the New Zealand Police, stated that the death occurred after Mr Červeň declared he had a firearm and was about to use it.

Almost all of you will know this already. The information, after all, comes from a press conference, excerpts of which early in major news programmes on television and radio, and which made it into stories in New Zealand’s major newspapers, and on-line News sites.

But this is still an exclusive, as I am the first person to be able to tell you this legally.

Until Friday afternoon, shortly before I ‘broke’ the news on twitter, the Coroners Act forbade any publication of the fact that someone had been shot by police in Myers Park.

This is obviously ridiculous. The law should not automatically suppress the fact that police have shot and killed someone. Not only should it not automatically be suppressed, I’m not sure it should ever be suppressed. The death of someone at the hands of those exercising state power is an issue of the highest public importance.

Anyway, I thought this was important. And, as I have before, I sought permission from a Coroner to publicly discuss the salient details.

I should be clear, the law does not ban the publication of all police shooting deaths. Rather, the circumstances of this death, as relayed by police at their press conference, bring into play section 71 of the Coroners Act, which limits the discussion of particulars of the manner of a death if “there is reasonable cause to believe the death was self-inflicted”. I considered there was a chance that that applied here. It is difficult to see a distinction that could clearly distinguish a death resulting from someone purposefully stepping in front of a train as self-inflicted, but allowing that a death resulting from someone (especially someone unarmed) telling armed police officers that he was about to use a firearm could never be self-inflicted. As it happens, the Coroner agreed. Deaths at the hands of Police have previously been ruled suicides, and although there is no conclusion yet, there is at least reasonable cause to believe that may be the case here.

The death was on Sunday 2 August, the press conference on Monday 3 August, and I made my request for permission on the Tuesday. By Thursday, I had a response: “Coroner Greig will not be commenting about this case until the investigation is complete.”

I hadn’t asked for comment, so I followed up, and had a formal reply later that day:

It is early days in the inquiry into Mr Červeň’s death. However, given the reports in the media, it appears that section 71(1) of the Coroners Act 2006 may apply. Accordingly no person may, without the Coroner's authority, make public any particular relating to the manner in which Mr Červeň’s death occurred until her inquiry into the death has been completed. Such authority is not granted.

A man was dead, shot by police, and the public could not lawfully be told this.

I thought this was a little off.

The following day, I filed an application in the High Court, seeking a statutory review of the decision. To ensure there would be as little delay as possible, I also filed the necessary evidence, and my submissions. It had its first call a week and a half later, and was set down for second call for four weeks later (tomorrow, as it happens), allowing the Coroner and the Crown Law Office time to consider their position on the application.

And late Friday afternoon, I received a decision of the Coroner, granting the permission I had sought five and a bit weeks ago. Permission was granted to release the following particulars:

  • David Červeň was shot by police officers in Myers Park, Central Auckland on 2 August 2015.
  • David Červeň died as a result of the injuries he sustained when shot.
  • Prior to being shot, David Červeň had told attending police that he was armed.
  • After being shot, David Červeň was found to be unarmed. No weapon was found at the scene.
  • The Coroner has ruled that there is currently reasonable cause to believe the death was self-inflicted though this is in no way a concluded view on the matter.

This suggests to me one of the problems of the whole process of requesting permission from a Coroner. For a journalist, or a blogger, a request for permission to make public particulars of a death is a request to report what they would ordinarily report: quotes of eyewitnesses and information made public by police. That first, rough draft of history, not firm conclusions. But for a Coroner to give their approval to report a particular, that Coroner may feel it necessary to be satisfied that something is, in fact, a particular of the death.

And if that it is the approach, the system is only going to get worse. A bill to amend the Coroners Act recently went through select committee and is awaiting second reading. The bill contains some improvement over the current law: for example, it permits reports that a death is a ‘suspected suicide’. For most suspected suicides, that will enable a freer discussion in the media: the possible method is usually not of public interest. But the restrictions will still apply to all of those other examples I gave in previous look at this matter, like Facebook mourners. And it will still prevent publication (without permission) in cases like the one, where the manner of death is itself the story.

In other respects, however, the law is getting stricter. The penalty for a breach is increasing, and the law now more clearly proscribes the details that may be published, banning publishing not only the method (or suspected method) of a self-inflicted death but also the publication of “any detail (for example, the place of death) that suggests the method or any suspected method of the self-inflicted death”.

And perhaps most importantly, the bit of the law limiting the effect of the ban to potential self-inflicted deaths occurring in New Zealand has been removed.

The Select Committee notes in its report that:

This prohibition does not work well in practice. Although this reporting restriction applies to suspected suicides occurring in New Zealand, it does not cover overseas suicides, which are able to be reported in New Zealand media.

And then, without further explanation, they remove the words “This section applies in respect of a death if … the death occurred in New Zealand”.

I’m not really sure whether this means what it looks like it means. If Coroners currently have difficulty allowing the publication of a particular that they have yet to determine is a particular, I can only imagine the difficulty that will be presented when the Chief Coroner is asked for permission to publish particulars of a death over which she has no jurisdiction, and which no New Zealand coroner will ever investigate.

At some point, information arose suggesting, perhaps even giving rise to reasonable cause to suspect, that the deaths of those on Flight MH370 may have been a result of the deliberate action by a pilot. We may never know. But the suspicion is there, and it may be that should a similar event happen again, it would be illegal to tell New Zealanders that a plane has crashed, lest the manner of the pilot’s death be revealed. If the Select Committee’s unanimous recommendations are adopted, the Chief Coroner will find she has much broader job than she is expecting, with oversight not only of the New Zealand coronial system, but of coroners throughout the world.

Of course, the likelihood of anyone other than me actually bothering to ask for permission in a high-profile case seems low. And the likelihood of all the Facebook friends of who someone who overdoses, seeking permission before mourning is even lower.

There is some hope in the Coroners Amendment Bill. It does appear to be designed to speed up decisions on requests, recognising the urgency that requests for permission to publish particulars will have. But even the two days it took this time to get a first response is far too slow for a case like this. That it can take five weeks until a Coroner is satisfied that it is appropriate to grant permission to publish the fact that someone has been shot by police, when that information was released by a senior Police Officer at a press conference, is laughable.

Or it would be, if it hadn’t cost me $600 to get that far.

It is not too late for Parliament to fix this law. Realising that the law they’re re-enacting can ban the broadcast of police media conferences is a good place to start, and they can follow it up by limiting the law to New Zealand deaths at the very least. David Seymour, I’m looking at you.

And, in all its glory, the most expensive tweet I hope to ever send:

22

Update: Into the River

I noted in my last blog post, Into the River/interim restrictions, that I had applied to revoke the Interim Restriction order that is presently banning the distribution of Ted Dawe's award-winning you-adult novel, Into the River. Interim Restrictions orders have been relaxed several times in the past (generally to allow people temporarily banned from seeing a film to see the film so they can properly engage in the review process), so it was not wholly without hope.

Public Libraries of New Zealand,  the Library and Information Association of New Zealand Aotearoa, and the Publishers Association of New Zealand, also applied to have it revoked. I feel like I was in good company.

We received the decision earlier today. The application was refused. The temporary ban remains in place until the Board of Review makes its decision early next month.

The full decision follows. It does not really enage with any of the arguments that have been levelled against the decision, and, as with the original decision, does not even mention freedom of expression.

INTO THE RIVER - APPLICATIONS FOR REVOCATION OF INTERIM RESTRICTION ORDER

  1. I have received, through the Department of Internal Affairs, several applications for the revocation of the interim restriction order currently in existence in relation to INTO THE RIVER. Such applications have been made by Public Libraries of NZ, The Publishers’ Association of NZ, LIANZA and Mr Graeme Edgeler. I have given them careful consideration and have decided not to revoke the interim restriction order.
  1. The Board expects to meet on 2 October to consider the review which has been sought by Family First. That is the earliest practical date on which it is possible for the 5-member Board to meet, allowing sufficient time for the development and lodgement of submissions by eligible submitters. Those submissions will receive full consideration by the whole Board which considered the book at length in 2013 and imposed an R14 restriction.
  2. The main reason for the interim restriction order remains valid. To repeat it, it is important that the Board’s consideration of whether any restriction on availability is appropriate is not inhibited in any way by further distribution in the short period before the Board’s decision, whatever it is, is reached and published.
  3. In light of what has just been said, it is unnecessary to decide whether I am satisfied that each of the applicants for revocation is “detrimentally affected by the existence of the order” (s.51(2)(c) of the Act).

Dr D L Mathieson QC
President of the Film and
Literature Board of Review
14 September 2015

56

Into the River/Interim Restrictions

The Censor recently reclassified Ted Dawe’s award-winning young adult novel Into the River as “unrestricted” (.pdf). This decision is now to be reviewed by the Film and Literature Board of Review, whose President has imposed an interim restriction order, which means the book cannot be sold or distributed by anyone.

Essentially, the Board of Review is there to provide some community oversight over the decisions of the professional censors at the Office of Film and Literature Classification. While both are bound by the same laws, the basic idea is that if professional censors stray too far from community expectations, they can have the views of a wider group within the community made known to them. This goes both ways: the Board of Review has often lessened the restrictions imposed by the censor. Cruel Intentions was initially rated R18, but its rating was reduced in time for its video release to R16 (I have heard that the review was taken because distributors didn’t want to dilute the R18 brand, given the film didn’t actually contain sex). And it was a decision of the Board of Review over Saving Private Ryan that means the censor now rates films whose sole concern is that they depict "graphic and realistic war scenes” as R15, and not the R16 restriction the censor would have imposed.

There’s no automatic right of Review by the Film and Literature Board of Review, and the Board doesn’t make many decisions. It appears to have made two decisions in 2014 (including a review of five text message), and one decision in 2013 (their first look at Into the River, which changed rating to R14), and four in 2012 (including the US remake of The Girl with the Dragon Tattoo (confirming its R16 rating), and New Zealand Film Two Little Boys (reducing the censor’s R16 to an R15).

The Censor had looked at Into the River before, rating it “M (unrestricted and suitable for mature audiences 16 years and over) with the descriptive note 'Contains sex scenes, offensive language and drug use'”, but this decision was overturned by the Film and Literature Board of Review in 2013, which gave the book a unique R14 rating (Don Mathieson QC, the Board President (who has also imposed the Interim Restriction order), issued a rare dissenting view and would have rated the book R18).

This wasn’t all that long ago, so I was pretty surprised at news of the reclassification by the Censor. The Censor gets to make decisions, but these can be reviewed by the Film and Literature Board of Review, which gets to make (subject to High Court review) the final decision. As with all classification decisions, the Censor can revisit them after a time (it does so occasionally when asked, notably in respect of books banned years ago. In 2012, after the book ‘Bloody Mama’ (banned in 1971), was seized at the border, the Censor looked at it again, and reclassified it as unrestricted), but the general rule is that decisions stand for at least three years.

It’s been less than three years since that R14 decision of the Board of Review, so the Censor needed to be “satisfied that there are special circumstances justifying reconsideration”. The reasons given for finding that there were special circumstances were as follows:

Since this publication was classified R14 in January 2014 a number of factors have come to light which taken together amount to special circumstances justifying the reconsideration of the classification of the publication under s.42 of the Films, Videos, and Publications Classification Act 1993. The factors include the range of views expressed by the Film and Literature Board of Review, the capacity of public libraries to mitigate the injury to the public good which might but for the restriction flow from unrestricted access to the book, the shared view of libraries across New Zealand, in particular the 63 public libraries run by local government authorities, the impact that the restriction has had on the value of the book as a teaching resource, and the significance of the book as an aid to countering issues in New Zealand about bullying.

The problem that was presented to the Censor, and which has led to the censor deciding that the R14 restriction unreasonably limits freedom of expression, is that it appears that the R14 restriction is stopping people aged 14 and up from accessing the book. Any restriction precludes the book being on library bookshelves, or easily accessible in book stores, because it could be picked up and by 13 year-olds, and most bookstores and most libraries do not have R14 (or even R18) sections to which children are not admitted. While perhaps not disagreeing that the book is appropriately limited to teens, the Censor has decided that the act of restricting the book has had a detrimental effect on freedom of expression for those who would appropriately have access to it, and that in light of the importance of the book, this restriction is unreasonable, especially in light of other things that can be done to limit the harm done to children who might access it.

I really like the decision of the Censor, and think that the appreciation of the unintended consequences of a possibly-justifiable-in-theory restriction is a welcome advance for freedom of speech in New Zealand. But it is probably no surprise, given the past (recent) controversy, that those who sought that the book be classified last time, would again seek to review the decision.

So that there is to be another review by the Film and Literature Board of Review isn’t surprising. What is noteworthy is that, pending the review (which might take a month or so), the President of the Board of Review has imposed an interim restriction, which bans anyone from supplying it to anyone else.

And there is a problem with this.

The Board of the Review said banning 14 year olds from reading Into the River would be unjustifiable, and even the President of the Board, who would have gone further, didn’t think everyone should be banned from reading it. Yet, for the next month or so, that’s basically what has happened (although if you already have a copy, you’re not breaking the law, you just can’t supply one to someone else).

I don’t think this an appropriate or proportionate used of the Interim Restriction power. When you’re talking about a publication like the film Baise-moi, interim restrictions can make sense. There were arguments that Baise-moi shouldn’t just be restricted, it should be banned. We have reviews and appeals for a reason, and the power to make an interim restriction order is in the law to allow the process to occur fairly. If those who consider a publication to be so detrimental to the public good are to be able to pursue this properly through the review process, or in the Courts, it’s appropriate that there is a discretionary power to restrict a publication while that is being sorted through. Without such a power, the damage (such as it is) that publication can supposedly do could be done, when, as a matter of law, it shouldn’t have been allowed.

But Into the River is not Baise-moi. There were arguments that Baise-moi was so injurious to the public that allowing anyone to see it would be harmful. No-one is arguing that Into the River should be banned. And yet, the Interim Restriction is a ban.

For me, the problem is way the Interim Restriction Regime is set up. It’s designed for films like Baise-moi, but in situation like this, it leaves the President of the Board of Review with two options: allow the decision of the Censor that Into the River should be unrestricted to stand while the board makes its decision, or ban the book while the board makes its decision. He doesn’t have the power to say: Into the River has been R14 for the last 18 months, can we leave it at that for another month while we make a new decision, in light of the new evidence? That's probably a hole in the law, but its certainly not one I'd have picked up before today.

The Board has already looked at Into the River and decided that, if 12 and 13 year-olds read it, there is a risk they may be harmed. I suspect that the President of the Board of Review has had that decision in mind when he made his decision: if the Board was “right” and 12 and 13 year-olds will be harmed if they read Into the River, then that harm can now occur. It is possible that the Board will maintain its view, and the President of the Board sees it as his responsibility to maintain the status quo ante, in light of that still pretty recent decision. For the next month or so, 12 and 13 year-olds will be banned from accessing Into the River, it’s just that, unfortunately, the only way he can achieve that end, is to ban everyone from accessing it.

In my mind, the decision is clearly wrong. Whatever risk of harm there is, that harm is nowhere near the highest level, and the possibility of that harm is not enough that it is justifiable to ban everyone from accessing this book, even for a month. The Bill of Rights permits the balancing of societal interests, against individuals’ interests, but in a situation like this, where everyone agrees that the adult population should be permitted to read this book, the possibility an R14 restriction may come into in force in a month’s time does not come close to providing a demonstrably justifiable reason for a temporary ban.

But there's not really a lot any of us can do about it in the meantime. [edit: as Andrew Geddis notes in the comments, it is possible to apply to have an Interim Restriction Order revoked, if one is "a person ... detrimentally affected by the existence of the order". As such a person (I would like to buy the book), I have applied to have the order revoked. I see no reason why there shouldn't be more than one application, however.] Unfortuantely, it's just one more thing to add to the list of problems with our censorship laws.

Update:

I am grateful to the Association of New Zealand Booksellers for uploading the decision granting the Interim Restrict order (here as .pdf). Why this is not available on the DIA website, or the website of the Censor, I am not sure. The reasons given for the interim restriction are:

This order is in the public interest for the following reasons:

1. The classification of Into the River under the Act is a matter of wide public concern, as evidenced by the volume of submissions to the Classification Office and published comments.

2. The decision of the Classification Office would radically alter the decision of the Board of Review.

3. It is particularly appropriate that the Board should have an opportunity to consider the publication a fresh without being inhibited in any way by any distribution occurring between now and the date of the Board’s decision.

4. It is debatable, and a matter of independent public interest, whether the Chief Censor acted lawfully under section 42(3)(b) of the Act in deciding that “special circumstances” exist.

5. It is highly arguable whether the Classification Office has reached the correct conclusion on the application for reconsideration before it.

6. The correct classification of Into the River under the Act will operate as a semi-precedent, and will exert a significant influence upon other decisions portraying teenage sex and drug-taking.

As you can see, there is no consideration of the wider effect of the order.

96

Cameron Slater: computer hacker?

In September last year, David Parker laid a complaint with the Police about a supposed “hack” of the Labour Party website by Whaleoil blogger Cameron Slater. On Friday, Police released a letter explaining that their investigation was over, and they were satisfied that “there was no evidence of criminal offending”. They considered that while the matter “may raise privacy and ethical issues, these are not the domain of the criminal law.”

I will be clear: based on what I understand occurred, I do not think Cameron Slater’s “hack” of the Labour Party server donor’s list was criminal. I think an interpretation of the law that would mean that what I understand Cameron did was criminal would make illegal a lot of things that I do not think should be illegal, and think that we should be reluctant to interpret the particulars laws in play here in a way that would render a great deal of ordinary computer use subject to prosecution.

The possible offence we are considering is the offence against section 252 of the Crimes Act: accessing a computer system without authorisation. You commit a crime if you:

  • intentionally access (directly or indirectly)
  • any computer system
  • without authorisation
  • and you either know that you are not authorised to access that computer system, or are reckless as to whether or you are authorised to access that computer system.”

But the law comes with a caveat: this offence is not committed “if a person who is authorised to access a computer system accesses that computer system for a purpose other than the one for which that person was given access.”

For me, this subsection means that Cameron, who was, like the rest of us, authorised to go to Labour’s server to look at Labour’s website, was not committing a crime by looking at the other files that Labour had left open to view on their server.

But I have to concede that my interpretation has problems. I have authorisation from Google to access its servers to check my gmail account. I do not have authorisation from Google to access their servers to read your gmail account, but the interpretation I favour does mean that my hacking a gmail account of someone else, which I clearly have no right to access, may not be criminal (although there are other offences that might be committed if there's dishonesty involved, or I cause damage) because I would be accessing gmail’s servers (which I am authorised to do, to read my emails) for a purpose other than the one for which I was given access.

And there are arguments for an alternative interpretation of the law. The definition of computer system is open to some interpretation

computer system—

(a) means—

(i) a computer; or

(ii) 2 or more interconnected computers; or

(iii) any communication links between computers or to remote terminals or another device; or

(iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and

(b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.

You will note that “computer system” includes “any part” of a computer system.

The drafting of the definition in this way is, I think, intended to forestall arguments that someone has not accessed a computer system because all they actually did was access some small part of it. The argument “I didn’t access their computer system, all I did was access their hard drive” doesn’t fly.

But the definition can be argued the other way. The part of the gmail servers that contain your gmail account, is defined as a computer system. I may have permission to access other computer systems owned by Google, like the parts of their servers that contain my gmail account, but I lack authorisation to access that part which contains your (which, under this interpretation, is a separate computer system), and I could thus commit a crime if I access it.

I think this interpretation proves too much, in that it would render the caveat almost meaningless. If your work denies you permission to access the part of the hard drive which contains solitaire, but you play solitaire anyway, I think your actions should be protected by that caveat: you have permission to use your work computer, and your use it for a purpose other than work, may be an employment breach, which if serious enough, or repeated enough, might be grounds for termination, I don’t think it should be criminal.

But I have to concede that the argument can be made, and that my position does, in some respects, try to narrow the definition of computer system which might be seen as clear.

Which brings me back to the police investigation. The Police have said they don’t consider there was crime. That conclusion accords with my view, but the debate is a legal one.

I have been asked a few times about the possibility of private prosecutions arising from Nicky Hager’s Dirty Politics. My advice is generally that prosecuting is hard: the defendant has a right to silence, you have to prove things beyond reasonable doubt, and private prosecutors can’t get search warrants. Dirty Politics contained several claims that could be allegations of criminal activity, but they will be difficult to prove without the coercive powers of the state.

But that caution doesn’t apply here. There is little if any factual dispute about what has happened here. It is not going to be difficult to prove that Cameron accessed the Labour Party website, or how it was done: Cameron published a video showing how he was able to access the information Labour had on its server. It is still online now.

What is left is a legal argument over whether what has been admitted amounts to criminal conduct.

Like I have said, I don’t think what Cameron explains doing in that video is criminal, but I know that some people in whose legal judgment I ordinarily place much confidence disagree with me, so I have to be open to the alternative view. If Labour seriously considers that what Cameron Slater did in accessing their server amounts to criminal hacking, a private prosecution to resolve the question will not be difficult.

I hope that, absent new evidence, a prosecution would fail, but for those who disagree with my view, the way forward is clear.