Police shouldn't get to decide who never sees a judge

Attorney General Judith Collins drafted new prosecution guidelines, which gave the Police discretion who to prosecute. No statistics are kept on how often the discretion is exercised.

The Solicitor-General's Prosecution Guidelines were meant to keep politics out of criminal justice. In practice, they let police quietly bury the cases that embarrass them.

  Every criminal complaint in New Zealand has to clear two hurdles before it reaches a courtroom: the evidential test and the public interest test, set out in the Solicitor-General's Prosecution Guidelines. Officially, the tests exist to stop weak or trivial cases clogging up the courts. In practice, they let police and prosecutors quietly bury complaints that never needed to fail on the facts at all.

  The guidelines don't even require the evidence to be weighed first. If a prosecutor forms “a clear view that a prosecution is not required in the public interest,” the guidelines say a case can be dropped “without the need to comprehensively evaluate evidential sufficiency.”

In other words, the strength of the evidence never has to be tested at all.

  Nor is it always a prosecutor making that call. The guidelines openly acknowledge that the initial decision “is likely to be made by an investigator” — a police officer — with review by an actual prosecutor left for “a later date.” The guidelines also direct agencies to weigh “available resources and the likely costs of a prosecution” when deciding whether the public interest requires one.

A budget test, dressed up as a justice test.

  Victims fare worse again. The guidelines state plainly that a victim has no statutory right to a review of a decision not to prosecute — they may only “seek” one, at the agency's discretion. Britain has run a statutory Victims' Right to Review scheme since 2013. New Zealand still hasn't.

  Lawyer, former police officer, and former ACT Party board member and candidate Nick Kearney puts it bluntly:

Police were never meant to decide guilt, interpret the law, or choose who gets charged. That is the courts' job. The “public interest” limb of the guidelines does precisely that — quietly, with no judge in sight.

  That gap in power has no real counterweight.

Police can search, compel sworn statements and arrest — coercive tools no private citizen holds. A complainant left with a shut file can, in theory, bring a private prosecution instead.

In practice it barely works as a safeguard. Private prosecutors cannot compel evidence or take statements under caution, are not eligible for legal aid, and can still be ordered to pay a defendant's costs after prosecuting in good faith.

New Zealand legal research has found the costs alone place private prosecution “beyond the reach of most concerned citizens” and create a two-tier system of justice — asking a judge to finish an investigation police wouldn't, at the citizen's own expense, with none of police's own powers.

  The watchdog meant to check police conduct runs largely on police's own resources. The Independent Police Conduct Authority has about 40 staff and a $5 million budget against a police force of 14,000 staff and $2.2 billion, and relies heavily on the very organisation it's meant to oversee.

Between a public interest test with no judge in sight, a private-prosecution safeguard priced beyond most victims, and a watchdog leaning on the force it investigates, the Solicitor-General and Attorney-General have built a system where police answer to almost nobody but themselves.

  Police are not free agents in this. The Policing Act 2008 requires that policing services be provided “independently and impartially” and that every officer “act professionally, ethically, and with integrity.” Police Commissioner Andrew Coster riased the bar and expected police to act professionally, impartially, and apolitically.

But the incentives that once held that promise together have been stripped out piece by piece: a public interest test that lets police mark their own homework, an IPCA too thin to check them, and — this month — a Police Minister publicly disciplining an officer over his political leanings.

Professional, impartial and apolitical was meant to describe how police treat the public. Increasingly, it describes what the government expects from police in return.

Mark Mitchell likes to use the Police for his image. Here he is trumpeting about police doing community beats, instead of responding to reported crime.

  Mark Mitchell made that last point himself. This month he publicly criticised Superintendent Rakesh Naidoo for not disclosing sooner that he was in talks to become a Labour candidate while sitting in briefings on public safety and government policy. It is a fair point about disclosure. It sits awkwardly coming from a minister who has spent two decades working the same seam between police and his own party, and who eased out the previous Commissioner to install his own.

If police are expected to stay silent about their own political ambitions while their minister treats the Commissioner's office as a staffing decision, “apolitical” is being enforced in one direction only.

  I know how it works from the inside.

When I laid a police complaint over an assault covered up by my old school, a Hastings detective told me the case met the evidential test but was dropped under “the public interest test” — no written reasons, nothing to review, despite the Royal Commission into Abuse in Care having spent years on exactly this pattern of institutions and police looking away.

  It isn't only my case.

During my 2024 trial, a woman connected to serving police officers assaulted me with a weapon but the police charged me for breaking her weapon with my nose. During the trial and while under oath, she passed a note to the prosecutor with suggested questions. Then, her support person was caught interfering with proceedings, whispering answers from the witness stand in front of the judge.

The judge minuted it. Police were told. Police did nothing.

  Former ACT deputy leader Beth Houlbrooke, who relied on the same connections, once told a bar manager trying to remove her: “The police will believe me! I'm Beth Houlbrooke!” On the evidence, she wasn't wrong.

Houlbrooke and Mark Mitchell then organised a piss up for the local police in the Warkworth Town Hall:

  The local Police commander giving that speech fobbed off my complaint and tried to cover up that the one of his local police stations were operated by unvetted and unsupervised volunteers. The coordinator of those volunteers could be overheard in a 111 call coaching the complainant who made a false allegation against me.

That commander is the now the Police Facility Manager and serves as the Project Lead for the new Royal New Zealand Police College (RNZPC) Auckland Campus in Mark Mitchell's neighbouring electorate.

The complaint that Laurenson fobbed off was first handled by then Deputy Commissioner Richard Chambers, who Mark Mitchell pushed to become the current Commissioner. I've already asked Police Commissioner Richard Chambers to resign over how my own complaints were handled. He hasn't replied.

  Many malicious false allegations against me are still recorded in the Police's National Intelligence Application, yet my complaints were never recorded or acted on by those same Police. When I asked the Police for all mentions of my name in Police systems, the request was instead handled by Mark Mitchell's ministerial office and gathered dust.

  As National's courts spokesman in Opposition, Chris Penk built his profile on complaining about the criminal backlog. He now sits in Cabinet, with courts belonging to Nicole McKee, who recently welcomed the largest ever drop in the District Court's criminal backlog.

What ministers don't say is that fewer charges explain part of that fall.

Charging rates for reported crime dropped two percent last year and prosecutions fell 3.5 percent, continuing a decade-long slide in which arrests and charges are down 41 and 39 percent respectively since 2015 - two years after National's Chris Finlayson revised the prosecution guidelines.

  A falling backlog looks good in a press release. It looks different if part of it is achieved by a guideline that lets police decide, unreviewed and unexplained, that a case simply isn't worth the bother.

  None of this needs a conspiracy to explain it. It needs accountability.

The public interest test should come with written reasons and a genuine right of review, not function as a rubber stamp police reach for when a complaint is inconvenient or connects to someone they know.

Victims aren't asking police to be judge and jury. They're asking them to stop acting like both.