Photographs taken by Northland police at a road checkpoint in 2019 have been ruled unlawful by the Independent Police Conduct Authority. Photo / File
Photographs taken by Northland police at a road checkpoint in 2019 have been ruled unlawful by the Independent Police Conduct Authority. Photo / File
Photographs taken by Northland police of a woman and her partner pulled over at a Ruakākā checkpoint near an event attended by gang members were unlawful, the Independent Police Conduct Authority (IPCA) has found.
The IPCA ruled although the initial checkpoint on November 16 in 2019 was lawful, the point at which police required the woman to pull over to the side of the road where photos were taken by police she was arbitrarily and unlawfully detained for intelligence gathering purposes.
According to the IPCA, police breached the Privacy Act 1993 by photographing the woman and her partner without a reasonable connection to a law enforcement purpose and by failing to provide sufficient information about why the couple were being photographed.
IPCA authority chairman Judge Colin Doherty said police had acted dishonestly.
"Section 111 of the Land Transport Act 1998 was used as a pretext for intelligence gathering, which was a disingenuous and unlawful use of the section."
The IPCA denied the woman's claims attendees of the "fight night" event, apparently predominantly Māori, were racially targeted.
Instead Judge Doherty found there was no evidence of overt racism in the planning or carrying out of the operation.
Police had met with the event organiser - a gang member - to establish details, who would be attending, and to inform them of the planned checkpoint near the residential address on Takahiwai Rd where the fight night event was being held. A significant number of patched gang members and associates were expected to attend the fight night.
Around 30 officers were involved in the checkpoint split into two stages, with a group of officers stopping vehicles on the road to undertake safety checks and another group roadside to gather intelligence from vehicle occupants directed to pull over.
The woman, who had no gang affiliations, was stopped and breath-tested. Police checked her warrant of fitness and registration, and an officer asked for her licence.
"She was then asked to pull over to the side of the road where more officers were waiting, which she did," the report read.
A police officer then took a photograph of her driver's licence and another of her partner through the front passenger window with the woman in the background using an iPhone.
Police checked her warrant of fitness and registration a second time.
Around a month later the woman lodged a complaint with the IPCA, via her lawyer, regarding her treatment at the checkpoint.
"She believed she had been unlawfully detained and that police did not have authority to photograph her, her partner, or her driver's licence."
The police Arrest and Detention policy states a person is detained when they are "deprived of their liberty and not free to go as they please".
However, it notes some legislation allows people to be stopped or required to provide information in limited situations - such as police checkpoints – and the temporary limitation on their "freedom of movement" in these circumstances does not equate to detention.
A detention becomes arbitrary when a person is arrested or detained without any legislative power for those actions – unless essential for the person's safety – or their arrest or detention is unreasonable or unnecessary or continues for an unnecessarily long time.
"The direction that Ms Z pull over to the side of the road amounted to detention that was not based on any legislative power to arrest or detain. It was accordingly arbitrary and unlawful," Judge Doherty outlined in the report.
Northland district commander Superintendent Tony Hill says the region's police accept the ICPA's findings. Photo / File
The photographs - never used by police - were destroyed and police accepted the IPCA's findings which matched their own internal review, Northland district commander Superintendent Tony Hill said.
"We have reviewed this event and have identified a number of learnings. We have provided additional communication and advice to our staff to ensure they understand their obligations under these Acts when carrying out checkpoint operations."
Hill said police had positive intentions as they aimed to gather intelligence regarding members of organised crime groups.
"In future operations our staff will have clearer guidelines to ensure that all actions are lawfully executed under the Land Transport Act."
Currently there is a national review of how police appropriately collect, store and manage information.
A separate review is being undertaken regarding police policy, practice and procedure that specifically relates to the way law enforcement obtain, use and store photographs of young people and adults.
Hill said these reviews will be cognisant of the balance police maintain between intelligence collection for crime prevention, investigations, public safety; and the implications for privacy.
The IPCA and the Office of the Privacy Commissioner are also reviewing police practices used for photographing individuals.
