Independent Police Conduct Authority

The Independent Police Conduct Authority (IPCA) is an independent body that considers complaints against the New Zealand Police and oversees their conduct. It derives its responsibility from the Independent Police Conduct Authority Act 1988. Under section 12 of the Act, "the Authority's functions are to: receive complaints alleging misconduct or neglect of duty by any member of Police or concerning any Police practice, policy or procedure affecting a complainant; and to investigate incidents in which a member of Police (acting in the execution of his or her duty) causes or appears to have caused death or serious bodily harm." Most of the Authority's investigators are former police officers, which creates concerns about the IPCA's independence and effectiveness.

The Authority also monitors conditions of detention and treatment of detainees in Police custody. In this respect, the IPCA is one of several 'national preventive mechanisms' designated in 2007 under an amendment to the Crimes of Torture Act 1989. Other agencies with responsibility for monitoring places of detention include the Human Rights Commission, the Children's Commissioner and the Ombudsmen. Together, these agencies including the IPCA, have joint responsibility to uphold New Zealand's commitment to the Optional Protocol to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment (OPCAT).

History

Prior to 1989, complaints against the Police were investigated internally. Following several years of debate about Police accountability, sparked in part by the role of Police during the 1981 Springbok Tour, the Police Complaints Authority was established in 1989. The Police Complaints Authority comprised a single person, Allan Galbraith, who was the Authority's Manager of Investigations between 2003 and 2010 and had been a member of the New Zealand Police for 37 years. Because of its reliance on police to investigate themselves, the Authority was perceived as lacking independence.

In 2004, a number of historic sexual misconduct allegations dating from the 1980s were made against both serving and former police officers. During that year, Prime Minister Helen Clark announced a Commission would be established to carry out an independent investigation into the way in which the New Zealand Police had dealt with allegations of sexual assault. The investigation was conducted by Dame Margaret Bazley and took three years. It reviewed 313 complaints of sexual assault against 222 police officers, including 141 in which Dame Margaret said the evidence was strong enough to warrant criminal charges or disciplinary action.

Dame Margaret's inquiry identified the inadequacy of police investigations into misconduct by their own officers and recommended that a more independent body was needed. In November 2007, the Independent Police Conduct Authority was established employing independent investigators.

Membership

The current Authority has a Board with up to five members. One member serves as chairperson, and the chairperson must be a Judge or a retired Judge. From its inception, the Authority was headed by High Court Judge, Lowell Goddard. In August 2010 Parliament appointed three new Board members to the Authority: Angela Hauk-Willis, a former deputy secretary of Treasury, with special responsibility for corporate governance, Maori responsiveness, and ethics and integrity; Dianne Macaskill chief executive and Chief Archivist at Archives New Zealand from 2001 to 2009; and Richard Woods, who from 1999 to 2006, was the director of the New Zealand Security Intelligence Service, and from 2008 was chairperson of the Environmental Risk Management Authority.

In April 2012, Judge Sir David Carruthers, former chairman of the New Zealand Parole Board, was appointed Chair of the Independent Police Conduct Authority for a term of five years. Soon after he took over, he said he wanted to see more of the watchdog's work opened to public scrutiny.

Investigators

In 2013 the IPCA had only six investigators but employs 25–30 full-time staff including analysts, legal advisors, communications and support staff. The official website indicates that its current and former investigators have backgrounds in police and other investigative work in Australia, Canada, England, Scotland, New Zealand and other jurisdictions. Their collective experience includes investigation of homicides, organised crime, drug enforcement, fraud and corruption, terrorism, war crimes, and a wide range of other criminal conduct.

In February 2013, IPCA chairman Sir David Carruthers told Parliament's law and order committee that "In line with moves by its English counterpart, the authority is looking at employing investigators who are not former police officers to counter perceptions (that) inquiries are not completely independent".

Complaints process

Most complaints to the IPCA are not investigated by the Authority but are referred to the Police to investigate. However, the IPCA oversees the Police handling of these complaints, usually by conducting a review or audit of the Police investigation after it is completed. In cases involving fatalities or allegations of serious misconduct, the Authority does conduct its own investigations. It may also investigate incidents in which there is a significant public interest in having an independent investigation – for instance when allegations are made against a senior Police officer.

How the IPCA handles complaints is based on a number of factors – the first being how serious the complaint is. The Authority receives about 2000 complaints every year but has only nine investigators – so it has to prioritise its investigators onto the most serious cases. Another consideration is whether or not the complainant alleges police have broken the law. If a complaint may lead to an officer being charged with a criminal offence, the Police have to conduct an investigation because the IPCA does not have the power to lay charges. However, the IPCA can conduct a parallel investigation, overseeing or directing the Police investigation, or reviewing the Police investigation once it is completed.

To manage the complaints process, the Authority has established five categories or levels of seriousness. In 2011 the Authority classified 138 incidents and complaints as 'Category 1' – serious enough to require independent investigation by the Authority. They included allegations of serious assault by Police officers, failure by Police to adequately investigate serious matters, and deaths or injuries following Police pursuits. Another 60 were classified as 'Category 2' requiring review by the Authority. Category 2 incidents include inappropriate behaviour by police, alleged corruption, and assaults. However, the vast majority of complaints are classified as Category 3, 4 or 5 and are resolved by way of direct correspondence with the complainant.

Independence and effectiveness

The IPCA is independent from the New Zealand Police. It is not part of the Police and is required to make its findings based on the facts and the law. It does not answer to the Police or anyone else over those findings and in this sense, its independence is similar to that of a Court. The Authority's status as an independent Crown entity means that there is no political involvement in its operations.

Ross Meurant questions the integrity of the IPCA because its hearings are held behind closed doors rather than in a public forum. He believes the IPCA has taken on the role of a closed court and that in cases where a death appears to have been caused by police, hearings should be open to the public and to media. Meurant says closed hearings are "corrosive to an open society; abrogating elementary constitutional checks and balances, which are part of the legal fabric of all western democracies, is the beginning of a form of corruption which can easily become endemic."

Inability to prosecute police

The Police are involved in a significant number of deaths each year – people die in police custody, in police pursuits and, rarely, civilians are shot by police (see below). No matter what the circumstances in which the police have killed or injured someone in the line of duty, the IPCA is unable to prevent police from pursuing 'fleeing' drivers and powerless to prosecute officers for anything they do. All the IPCA can do is make recommendations – which the police are not obliged to follow. In October 2012 a survey found 76% of respondents believed the authority should have the power to prosecute police officers. After publicity in 2012 about the slow police response to the assault on Jakob Christie, the newly appointed head of the IPCA, Sir David Carruthers, said he was considering whether to recommend new powers of arrest and prosecution for the authority.

Controversial cases

Another concern relates to the IPCA's independence. The Authority's investigators are mostly retired police officers and it has been argued that this introduces an inherent bias against complainants. There appears to be some legitimacy to this perspective. In 2010 the IPCA had nine investigators, six of whom were former members of the New Zealand police. One of them, Mr Larry Reid, was involved in an investigation into an assault on Jakob Christie, who suffered a fractured vertebra when police closed down a party in Khandallah, Wellington in September 2009. In the course of the investigation into the police response, Mr Reid allegedly called Mr Christie "a complete arsehole" and an interim police report containing personal details about Mr Christie was leaked to the media. Lawyer Keith Jefferies, who represents Christie, said Reid's remarks indicated bias with the result that "a fair consideration of the complaint becomes impossible".

The Police took over three years to conduct their investigation into the case. This prompted a Dominion Post editorial which said the police appear to be embarrassed by the attack on Mr Christie and were unenthusiastic about looking into it. The editorial suggested the police response to the case indicated a lack of respect for the IPCA and said: "If the Authority could prosecute errant officers, perhaps police would pay it more attention." When the Police completed their investigation they found no fault on the part of the officers involved, with insufficient evidence to substantiate the complaint. The IPCA has yet to release its report on the police investigation.

Another challenging case for the IPCA involved the unlawful arrest in 2005 of Tokoroa JP, Mii Teokotaia, a respected member of the Pacific Island community. Police charged her with conspiracy to commit arson after a fire damaged the local kohanga reo where she worked. Police told her employers that she was being investigated. Mrs Teokotai, then 66, lost her job – although the charge was later dismissed for lack of evidence and someone else was subsequently convicted of arson.

The IPCA found that a Tokoroa senior sergeant with "a clear conflict of interest" had been appointed by police management to look into Mrs Teokotaia's complaint. The Authority found that the police acted unlawfully by arresting her and lacked justification to incarcerate her and seize her passport and property. The Authority said Police Superintendent Gary Smith had totally mismanaged the case and had broken the law in the process. It also criticised two other officers who were involved – Southern district commander, Bob Burns, and former Bay of Plenty police professional standards head, Garth Bryan. However, the Authority failed to make its findings public because it "deemed them not of sufficient public interest" which allowed the police to ignore the Authority's criticisms of the officers who were involved. Eleven months later, Gary Smith was given a prestigious police posting in London and Garth Bryan was appointed to a senior job at police national headquarters in Wellington.

Slow turnaround

The IPCA takes its time completing investigations. There were 21 investigations into deaths involving police in 2011 and 2012 – most related to police pursuits. On average it took the IPCA 16 months to complete a report. The longest investigation was into the death in custody of Francisco Javier de Larratea Soler in 2008 which took 31 months. The investigation into the shooting of Halatau Naitoko in Auckland took 27 months. In January 2013 the IPCA had only six investigators to cope with the large number of complaints received about police each year. Its response to concerns about slow turnaround was: "The IPCA takes great care with its investigations and releases its reports once it is fully satisfied they are thorough, accurate, balanced and complete. Justice will always be our priority over speed."

In February 2013, IPCA chairman Sir David Carruthers said he hoped to speed inquiries up acknowledging that it is "very cruel on everybody, families, victims and police officers too when investigations dragged on over years".

Cases where civilians died

Deaths in police custody

In June 2012 the IPCA released a comprehensive report on deaths in police custody – which Justice Lowell Goddard told Parliament's Law and Order Committee was a 'particularly fraught area'. The review was prompted by several deaths of people who were heavily intoxicated and died after being detained in police cells.

The IPCA found there have been 27 deaths in the last ten years: seven occurred after police were overly vigorous in the use of restraint; seven were “caused by the detainees medical condition” which got dramatically worse in police custody; and ten were suicides. Fourteen of the deaths (just over half) involved people affected by mental health issues, including a history of self-harm or suicide attempts. Nearly half of the people who died were affected by alcohol at the time of their arrest, and five of them were only in custody for the purposes of detoxification; one third of those who died were affected by drugs – although in three cases, police failed to ascertain this information.

The police are required to conduct a risk assessment on detainees. The IPCA's investigation found that 85% of the 27 who died were either not assessed at all or were assessed as not being at risk – fifteen of those who died in custody had been assessed by police as being at no risk, and eight had not undergone a formal risk evaluation. Despite the inadequacy of these risk assessments, of the 27 deaths the IPCA said only four "involved serious neglect of duty or breaches of policy by police".

Following their review, the IPCA made 20 recommendations. One was that better training is provided to officers about the dangers associated with restraining people in a prone position with their hands tied behind their back, and that the training "reinforces the risks of positional asphyxia". Another was that detainees who are unconscious or semi-conscious, who are unable to answer the risk assessment questions, and/or physically unable to look after themselves "must be taken to hospital".

Shot by police

The police have shot and killed seven people in the last ten years. The IPCA is required to investigate all police shootings and has found that in all cases police were lawfully justified in using lethal force to defend themselves. However, these cases have polarised public opinion on the use of firearms by police, especially in cases where the victim was not armed, and raise questions about why the police did not use tasers.

Halatau Naitoko was shot dead by police on Auckland's North Western Motorway in January 2009. Naitoko was an innocent bystander who got caught in the cross-fire when police were aiming at Stephen Hohepa McDonald, who had shot at police following an aggravated robbery. Ross Meurant says there is no suggestion that police deliberately shot the wrong man but believes the police were negligent – and says this is grounds for manslaughter. Police did not lay charges against the officer who fired the fatal shot leading Naitoko's mother to announce the family planned to sue police for $1 million in damages. The family's lawyer, Colin Pidgeon QC, said Ms Fuimaono has a strong case in that the Independent Police Conduct Authority had pointed out "serious dereliction of duties" by the officers involved and "she feels unless she seeks compensation, justice will not be done."

Two people who were shot who were not carrying firearms. In April 2000 Steven Wallace was shot dead in Waitara. Wallace smashed windows in property and vehicles, leaving people fearful for their lives. When confronted by Police, a warning shot was fired, however he advanced rapidly towards them armed with a golf club and a baseball bat making threats to kill. Stephen Jon Bellingham was shot and killed by police in Christchurch in September 2007, after initially appearing to comply with Police requests, he rushed an officer with a raised hammer he had earlier used to smash up his own flat and some cars parked nearby. The officer fired when Bellingham was approximately 1.5m from him, with witnesses believing Bellingham was about to hit the officer with the hammer. This case prompted Meurant to comment that the officers should have been prosecuted: "So what if cars were damaged... a reasonable man would have concluded the officers should have walked away."

Deaths from police pursuits

Between December 2003 and 2008, 24 people died and 91 received serious injuries in police pursuits. But in the last few years there has been a dramatic increase in the number of deaths – in 2010 eighteen people died, more than in the previous four years combined, Fourteen people died in 2011, only three in 2012, however ten have been killed in the first five months of 2013.

The Authority has made numerous recommendations to police to change their pursuit protocols. One of its main concerns is that when police decide to pursue, they are not necessarily chasing dangerous criminals. Most fatal pursuits begin as a result of minor traffic infringements. For instance, drivers who are speeding are often chased. One third of cars involved in police chases turn out to have been stolen, with 50.6 per cent of those pursued being drivers who were in some way prohibited from driving. Research shows that these offenders are at a high risk of crashing regardless of whether they flee from police.

Drunk drivers who fail to stop at police check points are also chased. For instance, in March 2010, Penelope Rae Phillips died after being hit by a car driven by 20-year-old Frances Carol Stubbs. Stubbs had been drinking, was over the limit and 'did a runner' after being stopped at a police checkpoint. Luke Yates was pursued after failing to stop at a compulsory breath test checkpoint in Northland in April 2011. He also crashed and died was subsequently found to be was under the influence of alcohol and cannabis. Sina Naraghizadeh had traces of alcohol, methamphetamine and cannabis in his blood when he died of multiple injuries at the scene of a crash in Hobsonville Rd, Massey, in September 2011 after failing to stop for police. Four passengers in the vehicle received injuries.

In 2009, the IPCA released a report which found that out of 137 recent chases, only 31 were started because of known criminal activity. The IPCA recommended that the decision to pursue be based on known facts, rather than general suspicion or speculation about the offender and suggested police make "the risk to public safety from not stopping an offender" the main consideration. Police ignored both recommendations. After the deaths of three people in a police pursuit in 2012, the IPCA recommended that pursuit policy would should require officers to "state a reason for beginning a pursuit." It also recommended compulsory alcohol and drug testing of police officers involved in fatal incidents.

Geoff Alpert, a South Carolina University criminology professor who has studied police pursuits for 25 years, says New Zealand's policy, which enables high-speed chases for minor offences, is 20 years out of date. In the United States and Canada pursuits are generally restricted to violent offenders because "The number of crashes and severity and injuries had increased so much, these offences are not considered worth the risk of a chase in our crowded streets." In response, the police argue that the deaths and injuries are not the result of police chasing drivers, but the result of drivers fleeing police. The police have continued to pursue anyone who flees and the death rate has shot up – in 2010, 2211 drivers were pursued and 18 died. In 2011, 2115 drivers fled from police and 15 died. Another 89 people were injured, including four police and 16 bystanders. John Lambert, an Australian road safety expert, says 20% of those who get killed are innocent bystanders.

Because of the growing death toll, by January 2011 there had been six reviews of the police pursuit policy in the previous five years. Inspector Rob Morgan, acting national manager of road policing, said the jump in fatalities had not persuaded police to stop pursuing relatively minor offenders and stated "It's a bit random whether a fatality occurs at the end of a pursuit" as the Police could not decide the outcome of a pursuit, other than deciding not to pursue. In Queensland, police are now barred from conducting high-speed chases unless the offender is threatening someone's life or is considered 'high risk'.

Significant IPCA reports

Child abuse cases: In 2011, the IPCA released a report on the outcome of its Inquiry into Police handling of child abuse cases which began in August 2009. This followed a Police report in 2008 which found widespread failings in management of child abuse cases in the Wairarapa District. Those failings included poor case management and workload management, poor supervision, and a lack of accountability and responsibility. Submissions were sought, and the Authority conducted an audit of child abuse cases throughout New Zealand, investigating individual complaints about Police responses to child abuse allegations.

The IPCA chairman, Justice Lowell Goddard, said the scale of the inquiry had been unprecedented for the Authority and concluded "there were serious failures in the Police investigation of child abuse, which must never be repeated". The IPCA made 34 recommendations. The Police responded positively, and Commissioner Howard Broad established a Child Protection Implementation Project Team that has since led substantial changes to Police policies, practices, and procedures.

Deaths in police custody: In June 2012 the IPCA released a comprehensive report on deaths in police custody between 2000 and 2010 (see above). The report revealed there had been 27 such deaths in the last ten years and raised serious concerns about inadequate risk assessment procedures used by police.

Treatment of teenagers in police cells: In October 2012, the Authority issued a report on the treatment of teenagers held in police cells following reports in January 2012 about two young girls who were detained and strip-searched by Upper Hutt police. The IPCA launched a wider investigation which found that the number of youths being held in police cells has more than doubled since 2009. It said that "youths in crisis are being locked up in police cells and denied their human rights." Police practices that "are, or risk being, inconsistent with accepted human rights" include: being held in solitary confinement; having cell lights on 24 hours a day; family members being prevented access; and not being allowed to see the doctor when they have medical or mental health problems. The IPCA made 24 recommendations into how police can improve the detention and treatment of young people in custody.

Urewera raids: In May 2013, the IPCA released its report into police action during the Urewera raids which occurred six years ago. It said police were justified in undertaking the operation but police acted illegally when they invaded the homes of people who were not suspects and detained them while their houses were searched. The road blocks established by police at Ruatoki and Taneatua used to detain and search people were also "unlawful, unjustified and unreasonable". Chairman Sir David Carruthers said: "The authority recommends that police re-engage with Tuhoe and take appropriate steps to build bridges with the Ruatoki community."

Unpublished reports

Most IPCA reports are not released to the public – as in the inquiry into the deaths Matthew Hall and Timothy Parlane. In 2011, Matthew Hall was stabbed to death in his flat in Wellington but police never charged anyone with his murder. The Dominion Post subsequently reported that Mr Parlane confessed to a woman he had been dating that he had killed Mr Hall. Police interviewed Mr Parlane on 5 March, and he died a few hours later after being hit by a train in an apparent suicide. Although the IPCA report was not made public, it was given to Police who issued a statement saying: "Police have accepted the IPCA's recommendation that the commissioner reviews current policy, modifies it if necessary and develops an appropriate custodial management training programme. Work is now under way to review the current policy framework." In an editorial, the DomPost said this indicates the IPCA found some fault with the police and argued that: "If it is not prepared to say what, and how material it was to what transpired, then Sir David (Carruthers) should explain why he thinks the public has no right to know".

Chairman's statements

In February 2013, in a statement to Parliament's law and order committee, IPCA chairman, Sir David Carruthers called for significant changes to the way the Authority operates. He said the IPCA had taken legal advice from a senior QC about what it could make public noting that the public were increasingly interested in the outcome of the authority's investigations. Indicating a change to its established approach, he said that: "It's likely that we will (now) be reporting on all investigations unless there's an overwhelming private interest that's paramount."

Shortly after making this announcement about open reporting, the IPCA released its findings on the death of Hamilton woman Diane White who was killed after being attacked by her mentally ill neighbour with a hammer. The Independent Police Conduct Authority found the police had sufficient information on the situation and had the ability to prevent the murder, but failed to respond appropriately.

Carruthers also told MPs he believed the IPCA should be able to conduct "own motion" investigations, similar to those conducted by the Ombudsman. This would allow the IPCA to initiate an investigation into police conduct even if no complaint had been received. He said there were often stories in the media about police conduct and behaviour where the IPCA does not necessarily receive a formal complaint – and so "no one independent investigates it." He said the case in Nelson where the judge threw out charges against the Red Devils motorcycle gang after criticising the police for their dubious tactics was the kind of case where the authority could have launched an "own motion" investigation. He added that the inability of the IPCA to conduct such investigations meant "serious issues affecting the force's reputation are going unexamined".

See also

• Police corruption in New Zealand