On Thursday, the Police released a media statement announcing their decision not to charge John Banks in respect of the return he filed after the 2010 Auckland mayoral election. They also released slightly more fulsome letters to the complainants, including MP Trevor Mallard, and gave media interviews in which the Police conclusions were reiterated.
I can understand why Police now do this. I'm not sure they could get away with not doing it. But it is a little disconcerting all the same.
In the letter of explanation and media comment (.mp3), the Police have basically laid out the case that Mr Banks committed an offence under s 134(2) of the Local Electoral Act. It's too late to charge Mr Banks with it, because that offence is minor and the alleged offending took place well over six months ago, but the Police belief that Mr Banks is, in common parlance, a criminal,* is clearly laid out.
Why is this disconcerting? Well, the Police are not charging Mr Banks. He will never be given the opportunity to argue his case. This is, in effect, a smear Mr Banks will never have the opportunity to defend in court. Is it just that the Police do this?
In New Zealand, the presumption of innocence is generally applied in a formalistic way. It underlies legal consequence at various stages of the criminal process. The presumption of innocence is why we have bail, and why in most circumstances Police have to establish why release on bail should be denied, rather than a defendant having to prove they should be released. The presumption of innocence is also why the prosecution bear the onus of proof at trial, and is in part why those who are accused have the right to silence.
But the presumption of innocence generally doesn't have much effect more generally - no-one usually considers the presumption of innocence has any application outside the courtroom. But that isn't the only conception of the presumption of innocence. In a series of cases, the European Court of Human Rights have held that the right to be presumed innocent must be given practical and effective protection. It has held that the state can breach the presumption of innocence, by for example a judicial decision that observes that a person would have been found guilty had a strict limitation period not saved them, and in one case that a statement at a Police media conference denied one accused the presumption of innocence.
The role of the Police is manifold, but right up there is the investigation of allegations of offending, and the placing of evidence discovered thereby before courts. Publicly opining on the guilt of people they aren't even seeking to have placed before the courts isn't usually considered among their functions in society.
And John Banks' case isn't the first high profile investigation where implicit Police declarations of guilt have arisen.
In March, Police announced their decision not to charge Bradley Ambrose over the recording and release of the conversation between John Banks and John Key, that should have been known as the Teapot Moan scandal, but which instead suffered some stupid -gate suffix. This was particularly intriguing, because the expert legal commentary tended to the view that there was nothing criminal in the event. And more pointedly, in response to a question at the media conference following the announcement Assistance Commissioner Malcolm Burgess seemed of the view that Police couldn't have proved all the elements of the charge.
There are other high profile examples. Following their investigation into Darren Hughes Police announced that "After this careful consideration, the allegations do not reach the evidential threshold required to bring charges. As a result, no charges will be brought against Mr Hughes." Nothing particularly concerning about this, but following a public statement released by Mr Hughes that he had been "falsely accused", Police felt it necessary to publicly state that they had no concerns about the validity of complaint. And like, John Banks, and Bradley Ambrose, Hughes is placed in a position where the sole official conclusion is the untested one of Police detective.
Of course, the concerns don't apply in reverse. Following their investigations into allegations relating to David Garrett's statements to court in obtaining a discharge without conviction for historic offending, the Police statement took some pains to make clear that the decision not to charge Mr Garrett was not so much a decision not to charge him, but an acceptance that he hadn't, in fact, broken any laws.
The reactions to these different cases has been instructive. As with many things, it has tended to align with the commentator's political position, or their view of the individual concerned. And it was this realisation this compelled me to write this piece: had my approach to cases like these changed because of my views, for example, on the issues of the regulation of the media that arose from the Ambrose case, or election finance laws as arose in Banks'?
But even when we've reached the end, I'm not sure there's an easy answer to this quandary. We may dislike it when Police presume the power to publicly declare someone they have no intention of charging a lawbreaker, but in a world where we expect freedom of information, and want to hold the Police to account for their decisions as much as the politicians they may on occasion investigate, where should we draw the line? I'm not sure I know.
*A breach of a summary offence isn't technically a "crime". The term crime is defined in the Crimes Act 1961 as an offence which may be proceeded against by indictment.