Hard News by Russell Brown

53

The real problem with the #teapottapes decision

After three months and the extraordinary spectacle of search warrants being served on the country's major media organisations during an election campaign, Bradley Ambrose will not be charged -- even though the police statement says "we are clear that the actions of Mr Ambrose were unlawful."

Remarkably, the same statement says that in making their decision the police took into account the "letter of regret" the freelance cameraman had sent to both John Key and John Banks, noting that "both indicated acceptance of this statement."

One would think, from this statement, that Ambrose admitted dishonest intent in making the recording in his letter. He didn't. He simply said what he has always said: that the active microphone was left on the table by the Prime Minister's security staff and the recording was made inadvertently:

Contrary to what has been said by some people, this was not intentional, nor was it a "News of the World tactic". There was no money offered for the recording by the Herald on Sunday nor did they or any other outlet pay for it.

His regret is confined to his action in passing the tape to the Herald on Sunday -- which, as we know, asked the Prime Minister for permission to publish its contents and did not do so when he declined that permission.

Assistant Police Commissioner Malcolm Burgess went further in the press conference that followed his announcement. He said:

In the view of police investigators, the recording was "most likely" on purpose, but at the least "reckless".

So in the same breath as he credits Ambrose's letter for the decision not to prosecute him, the assistant commissioner seems to be saying that Ambrose was "most likely" lying in that same letter. This does not really make a lot of sense, does it?

In truth, it would have been difficult for prosecutors to have proved beyond reasonable doubt that Ambrose intentionally recorded the cafe conversation -- which, along with the pair's "reasonable expectation of privacy" in a cafe full of journalists, was the key to a prosecution case.

Nonethless, Ambrose, having never admitted an offence, has been dispatched with a "warning". And it's the extent of that warning that ought to trouble us.

In the police statement, Burgess says:

This sends a clear message to media that the recording and distribution of conversations that are considered private is likely to lead to prosecution in the future.

Burgess does not say what might be "considered" private, or who would do the considering, which renders the "message" to journalists somewhat unhelpful. He's effectively saying that the publication of any conversation that might be considered private will result in prosecution.

So that's any open-mic accident of the sort that happens to political leaders the world over without the police getting involved. Good old New Zealand. And, on the face of it, it also means the kind of private conversations in which there is demonstrable public interest. Burgess may not have thought that his statement would have a chilling effect on the fourth estate, but that is precisely its import.

And that is the real problem with the strange case of the Teapot tapes.

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