Legal Beagle by Graeme Edgeler


Dotcom spying: Crown criminal liability?

In my last post, I explained why I consider - based on the limited evidence available - a criminal offence has been committed in relation to the interception of Kim Dotcom's communications by the Government Communications Security Bureau.

In the media release announcing his police complaint, Green Party co-leader Russel Norman says: "The GCSB appears to have breached s216(B) of the Crimes Act, which bans interception of private communications."

But although I think an offence has been committed, the suggestion that the GCSB has itself committed an offence is fraught.

Can "the Crown" be held criminally responsible for breaking the law?

The long answer may differ, but the short answer is a very clear "no".

It has long been the common law position that the Crown cannot be criminally liable. The Law Commission (.pdf), and the Ministry of Justice have both recognised that there is no constitutional impediment to Crown criminal liability, but the basic principle is that while "judges are prepared to accept that the Crown may be subjected by statute to criminal liability, a clear and unequivocal statement is needed." A statement in a law that "this act binds the Crown" is not enough.

The Crown Proceedings Act deals with some of the complications that can arise when you're suing the government, but one of the solutions it provides - the assumption that the Attorney-General should be the default defendant - doesn't seem quite right in criminal proceedings.

We have already provided a limited exception to the general presumption that thew Crown is never criminally liable for its actions. In the wake of the Cave Creek disaster, we adopted law changes to enable Crown organisations to be charged with breaches of the Building Act, Health and Safety in Employment Act and Resource Management Act. The Crown Organisations (Criminal Liability) Act provides the necessary procedure by which the Crown can be proceeded against in those cases.

These aren't necessarily simple questions - even if we provided for the GCSB to be liable for criminal breaches of section 216B of the Crimes Act, what exactly would that mean? When are the actions of an employee of an agency sheeted home to the Bureau? Does the Board or Chief Executive of a Crown Organisation have to be in on the offending, or is a simple failure to have systems to stop something happening enough? The GCSB is under the "control" of its minister - would this mean it is treated differently from the police? If a member of the GCSB used GCSB equipment to spy on an ex-wife, we wouldn't hold the GCSB liable, so where do we draw the line?These questions need answers before we can even start.

Similar questions arise in respect of corporate liability for some offending, and we've resolved many of them by legislation. The Crown Organisations (Criminal Liability) Act answers some of the questions in respect of the specific offending with which it deals, but doesn't extend very far.

Some of the problems that can arise in organisational liability can be seen in the Megaupload case. In addition to the charges Kim Dotcom and his colleagues face, the Megaupload company has also been indicted in the United States. These charges exist, but the company's lawyers have applied to have them thrown out, arguing that US law does not provide for a process by which to serve an indictment on a wholly foreign company (Megaupload is Hong Kong based, and has no office in the US). If you can't even be charged, the case can never get off the ground.

In New Zealand, we've created a process by which a company can be charged with an offence, we would need to decide what processes are needed in respect of what offences if some part of the Crown is to be held criminally liable.

These things can be sorted through. But they haven't been yet.

While the GCSB itself cannot be criminally liable, no such problems arise in respect of the employees of the agency, or any police officers involved. In some respects, this is unfortunate. That some technician might be the person to carry criminal liability for a decision made be people at a much higher pay grade, would seem a little unfair, but if you're going to be intercepting the private communications of people, you do kind of a run a risk. And, of course, anyone ordering an unlawful surveillance operation may be liable as a party to any offending. And given that criminal liability for abetting a crime can be established even if a principal offender is never charged, such unfairness can be avoided.

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