Legal Beagle by Graeme Edgeler


The Police Investigation into the GCSB

The Police have completed their investigation into the GCSB spying on Kim Dotcom, and have decided not to charge anyone. I am fine with that. For the most part I don't think we should impose serious criminal liability on people who aren't intending to break the law. I think this was an appropriate case for the police to exercise their discretion not to lay charges, and have said so in the past.

Yes, there were people in the GCSB who illegally spied on Kim Dotcom, but absent knowledge or recklessness about their lack of authority, I think civil penalties - Dotcom being able to sue (whether for breach of privacy, or unlawful search or breach of confidence or something else) and get a remedy that way - should be sufficient. We don't need to use the criminal law in respect of individual employees of the GCSB to mark our disappointment, or anger, at what has gone on here.

But this isn't a case where police have found an offence committed, and then decided not to charge those responsible. Instead this is a case where the police have decided no offence has been committed at all.

And their decision is woeful.

The Police have said that they do not believe an offence has been committed because:

it cannot be established that any GCSB staff had the necessary criminal intent to illegally intercept private communications in this case.

The problem with this observation is that an "intention to illegally intercept private communication" is not an element of the offence  police were investigating. The intention requirement in the offence relates to the act of intercepting private communications by means of an interception device, not to the assessment of whether the interception was illegal.

Not all offences are like this. In addition to intercepting phonecalls, the GCSB can also access your computer. The offences around that are different. To commit the offence of accessing a computer system without authorisation, you must not only intentionally access a computer system without authorisation, you must also either know you didn't have authorisation, or be reckless about whether you have authorisation.

I think that law is a much better one. We should be reluctant to impose criminal penalties on those who lack a 'guilty mind'. I can't see a particularly good reason not to have that as an element of the offence of intercepting private communications. Any reasonable distinction that means knowledge or recklessness is appropriately an element of the offence of unlawful access to a computer, but shouldn't be an element of the offence of unlawful intercepting a private communication eludes me.

But the law draws a distinction in this case, and it is a very clear one. The police rationale for not charging anyone in this case assumes an element of the offence that simply is not there. I think the law should be amended so that that is an element of the offence, but I don't get to re-write the laws, and neither do police.

It happens I think they would have a good rationale for not laying charges in this case. The lack of intention to break the law is an entirely proper consideration in exercising the discretion not to prosecute in a particular case, and would have provided a good reason not to charge any particular GCSB employee.

I suspect that Police would still have faced criticism had they stated they considered an offence had been committed, but that it wasn't in the interests of justice to prosecute. It probably matters very little to them, but I would not have joined in.

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