20 Aug 2019

Nicky Hager police raid in 2014 'unwitting neglect of duty' - IPCA

11:34 am on 20 August 2019

Officers involved in the unlawful search of journalist Nicky Hager's home are not guilty of misconduct, the Independent Police Conduct Authority (IPCA) has found.

Nicky Hager walking into Wellington High Court 15/07/15

Nicky Hager Photo: RNZ / Alexander Robertson

The police watchdog said the 2014 raid instead resulted from an unwitting neglect of duty.

The search was carried out in the aftermath of the release of Mr Hager's 2014 book, Dirty Politics.

The police were looking for evidence about the identity of the hacker known as Rawshark, who had confidentially provided Mr Hager with information for the book.

A judicial review in 2015 found that the search warrant used was fundamentally unlawful, as the police had failed to comply with their duty of candour when drafting it.

In particular, police failed to mention Mr Hager was a journalist and could claim journalistic privilege to protect his confidential source.

The then-Green Party leader Metiria Turei asked the IPCA to investigate.

In its findings, the IPCA said 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," IPCA chair Judge Colin Doherty said.

The IPCA also found:

  • Police breached privilege and thereby acted unlawfully by taking investigative steps to act on information they observed or collected during the search
  • The 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 IPCA criticised the way police applied for production orders against Air New Zealand and Jetstar in relation to Mr Hager's travel, which it said were defective in that they failed to to disclose reasonable grounds to believe the companies held evidential material.

Police said the IPCA report again confirmed there was no suggestion officers acted deliberately to subvert or circumvent their legal duties.

In June 2018, police acknowledged the processes used to obtain the search warrant and request information about Mr Hager were unlawful, for which they apologised and reached a confidential settlement, including costs and damages.

In a statement, Mr Hager said he was pleased to receive further vindication of the position he took when he took the police to court.

"Again, an independent investigation has found extensive evidence of many unlawful acts by police," he said.

"I hope these findings will further strengthen the protection for journalists in the future."

However, Mr Hager said he was hoping for more from the IPCA, saying it was disappointing there have been no recommendations of any consequences for the many breaches of law by police.

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