Breach of 'journalistic privilege' during unlawful search
Breach of 'journalistic privilege' during unlawful search of Nicky Hager's property
20 August 2019
The Independent Police Conduct Authority has found that the Police's unlawful search of Nicky Hager's property in October 2014 resulted from an unwitting neglect of duty and did not amount to misconduct by any individual officer. Police policy at the time did not adequately set out the procedure officers needed to follow when applying for a search warrant or executing a search in relation to potentially privileged material.
"Police did not conduct the search in an appropriate manner because they did not adequately plan how to give Mr Hager the opportunity to claim privilege over the material being searched if he was not at home. Nor did Police adequately plan how to secure the relevant documents without breaching privilege", said Authority Chair, Judge Colin Doherty.
Police had searched Mr Hager's property for evidence regarding the identity of a hacker known as 'Rawshark' who confidentially provided Mr Hager with information for his book: Dirty Politics: How attack politics is poisoning New Zealand's political environment.
Mr Hager sought a judicial review of the Police's search warrant and, on 17 December 2015, the High Court in Wellington issued a judgment declaring the search warrant was "fundamentally unlawful" as Police had failed to comply with their 'duty of candour' when drafting it. In particular, Police did not mention that Mr Hager was a journalist and could claim 'journalistic privilege' to protect his confidential source.
On 21 December 2015, Green Party co-leader Metiria Turei asked the Authority to investigate the Police's decision-making process regarding the application for the search warrant, and whether there was any misconduct or neglect of duty by any member of Police.
In addition to the findings noted above, the Authority found that:
• Police breached privilege and thereby acted unlawfully by taking investigative steps to act on information they observed or collected during the search.
• The Police's warrant application did not sufficiently address whether the officers had reasonable grounds to believe they would find relevant evidence in Mr Hager's home.
• The search warrant inadequately described two of the five categories of evidential material that was to be searched for and seized.
The Authority also found that:
• Police failed to fulfil their duty of candour when applying for production orders against Air New Zealand and Jetstar in relation to Mr Hager's travel.
• Those applications were defective in that they failed to disclose reasonable grounds to believe that Air New Zealand or Jetstar held evidential material.
As a result of this case, Police revised their policy on privilege by (a) clarifying the responsibility of officers to identify privilege issues when applying for a search warrant or planning the exercise of a warrantless search power; and (b) prescribing the procedures to be followed during the execution of a search when privilege is claimed, or potentially privileged material is identified. The Authority has reviewed the revised policy and is satisfied that, in this respect, it appropriately addresses the issues raised by this case.
During the Authority's investigation, Mr Hager raised questions about whether the resources Police devoted to the investigation into 'Rawshark' were proportionate to the seriousness of the alleged offence. The Authority was unable to reach a conclusion on this issue due to a lack of information about the competing investigative demands at the time.
[Scoop copy of report: 20_AUGUST_2019_IPCA_PUBLIC_REPORT__Unlawful_search_of_journalist_Nicky_Hagers_property.pdf]