Most investigations initiated by the Independent Police Conduct Authority end with no consequences or an opaque 'employment investigation' for police officers involved in misconduct, Marc Daalder reports
The independent authority charged with monitoring police wrongdoing has once again asked Parliament to give it the power to prosecute cops.
In a submission to MPs on a recent petition, the Independent Police Conduct Authority (IPCA) defended its independence and the accountability mechanisms it operates under, before offering a handful of suggestions for reforms that could give it greater powers.
A review by Newsroom of recent IPCA and police investigations shows investigations initiated by the authority rarely result in consequences for police officers. Even some investigations by police into their own staff misconduct have left the authority frustrated.
"Police may, at times, lack enough objectivity to make good decisions, and may not be as adept at striking the correct balance between the critical nature of dealing with conduct issues effectively and being a good employer who protects and supports their frontline staff," the authority's chair Judge Colin Doherty wrote.
"In other jurisdictions, bodies similar to ours can pursue prosecutions directly. In addition, there are options which might include allowing the authority the power to refer some matters direct to the Crown for decisions on prosecution to be made (such as driving matters, or cases regarding use of excessive force)."
Doherty has previously sought the ability to go after bad cops with teeth, including in a 2020 briefing to then-police minister Poto Williams. Chris Hipkins, who has been police minister for less than two months, told Newsroom it wasn't an issue he had thought much about.
"I haven't seen that advice yet, so I'd want to consider it and probably get some advice from Justice before making a comment on that," he said.
The renewed call comes after Doherty described the authority not as toothless but at least "gummy" in an interview with RNZ. A recent court case over the police shooting of Steven Wallace has also breathed new life into the authority's quest for prosecution powers.
"The issue of prosecution powers has been pushed to the forefront due to the recent High Court decision" on Wallace's shooting, Doherty wrote in the submission to Parliament.
"That decision has major implications for how police and the authority operate. That is because if a police investigation cannot be independent for Bill of Rights purposes, it equally cannot be independent for criminal law purposes. However, the current legislative framework does not allow us to be the alternative investigating body."
Green Party police spokesperson Golriz Ghahraman said it was clear the police couldn't be trusted to police themselves. But she also has her own concerns about the authority's independence.
"Our preference would be that [prosecution powers] go to an independent body because unfortunately, over the years, it's become apparent that the lack of transparency and to some extent independence of the IPCA as a body in itself is probably an issue," she said.
"The other thing to really consider is actually that there's still a point of referral that sits with the IPCA and we've seen so few cases where it has actually tried to escalate things."
Across 2022 so far, the authority website shows it oversaw 75 investigations by police into police misconduct. In the bulk of these – 41 – some form of misconduct was identified. In eight of the cases, officers were prosecuted. The most common outcome was an opaque "employment process", "employment investigation" or "appropriate action".
It is often unclear whether officers are still on the job after these "employment processes". For example, a police officer who told colleagues "police only shoot Black people" and joked about the murder of George Floyd by an American cop in 2020 faced one of these employment processes. No mention in the authority or police documentation was made of whether he is still working as a police officer.
Of the 75 police-led investigations, the authority only raised concerns with the investigation, findings or consequences on three occasions. One of these was an investigation into use of force to arrest a man for disorderly conduct in 2019.
"A criminal investigation determined the officer acted unlawfully and a charge of assault could be laid, but the decision was made not to, as it was not in the public interest to do so. Despite the criminal investigation findings, a subsequent employment investigation found the officer’s actions were lawful and complied with police practice and policy," the authority's summary of the investigation stated.
Even then, it backed the decision not to prosecute the officer but said he should have faced some sort of disciplinary employment action.
The accountability record for investigations led by the authority, without police involvement, is much worse.
Of the 55 such investigations reported across 2021 and 2022, 27 were found by the authority to involve some form of misconduct. Nine concluded with an employment investigation and 12 with no consequences whatsoever for the officers involved, including an incident in which the use of a police dog to bite a 14-year-old was deemed "not justified".
"We don't have particularly low rates of police misconduct," Ghahraman said. "We have particularly high rates of police use of firearms - higher than the UK and Ireland. This is actually dangerous. Lack of police accountability or an independent mechanism is to some extent giving licence to police to behave in a way that is endangering lives at quite a high rate."
