KEY POINTS:
The Taser stun gun is a dangerous weapon that can maim or kill. In Canada and the United States, Amnesty International reports, it has played a role in the deaths of more than 290 people.
It has the capacity to inflict immense pain and suffering. A Porirua man who was shot twice by police with a 50,000-volt Taser stun gun and remained in pain days later, reported, "It was unbelievable ... its horrendous".
"We've all had a shock from holding a light switch. It's about 10 of those all at once."
The police year-long trial of the Taser ended last September.
The trial was a first step in the police campaign to permanently equip officers with the Taser and is now being evaluated.
The Minister of Police has taken a hands-off approach throughout, insisting any decision on the introduction of the Taser is an operational matter.
Police spokespeople have campaigned strongly for the Taser.
They argued that its use is legitimate as a last resort where officers are involved in assaultive situations. They have been at pains to emphasise this "last resort" aspect of the use of the Taser.
However, the campaign has not highlighted a number of negative consequences of introducing the Taser into New Zealand. Indeed the introduction of the Taser is likely to have a negative impact on front-line police officers, on the image of the police in the eyes of the public and on New Zealand's international reputation as a champion of human rights.
The need for public consultation Before the Taser trial started, the police reassured the public that it would be used responsibly by drawing up Standard Operating Procedures (the regulations drawn up by police to control the Taser during the trial).
The procedures state that the Taser is to be used in assaultive situations - namely where officers are threatened with assault by persons capable of carrying out the threat.
An overriding principle governing Taser use in situations within the assaultive range is that "under no circumstances is the device to be used to induce compliance with an unco-operative but otherwise non-aggressive person".
However, a survey of Taser incident reports from September 2006 to March 2007 records 27 uses of the Taser in incidents ranked below "assaultive".
This reflects the concern noted by the Auckland District Law Society (ADLS) in December 2006 around "the erosion of the weapon's last resort status ... and the risk of a casualness developing among officers in their approach to the weapon and being tacitly endorsed through a lack of insistence on strict compliance with the guidelines". The ADLS report noted that in the trial Tasers were drawn often in cases where the level of seriousness did not seem to warrant their use.
The readiness to use the Taser to induce compliance is illustrated in a number of cases. In Porirua, on November 12, 2006, a second shock was administered to a man due to repeated resistance to attempts to handcuff him while on the ground.
Again in Manukau on January 12, 2007, a man was Tasered twice. In this incident the officer recorded that "when the initial probes were deployed he rolled over onto his back. I told him to remain still at which time he spun around and tried to decamp, so he was Tasered again by depressing the trigger using the same cartridge". In these instances the Taser was used to induce compliance.
The concern here is the extent of operational breaches documented within the trial phase - at a time when (as Amnesty International has noted) it would be reasonable to expect the strongest adherence to the guidelines drawn up by the police to regulate the weapon's use. Police use of the Taser during the trial does not inspire confidence that the stun guns would be used responsibly or in accordance with regulatory guidelines if they were to be permanently introduced.
It follows that the public should be consulted and invited to make submissions to the Government before any decision is made to arm the police with the Taser is considered. Police officers may be exposed to legal challenge.
The fact that some officers involved in the Taser trial found it difficult to comply with the Standard Operating Procedures should be a matter of concern for front-line police officers.
Given the fact that decisions to use the Taser are likely to be made on the spur of the moment, it is not surprising that the police guidelines have not always been complied with.
The fact that officers armed with Taser guns are likely to be placed in situations where there will be little time to consider if it is appropriate to use the Taser, will inevitably result in their actions being subjected to scrutiny. Such scrutiny is likely to be intense if a member of the public is injured or dies, or in cases where guidelines for use of the Taser are breached.
Police officers can be prosecuted in cases where they use excessive force against citizens. Any officer who uses a Taser in breach of such guidelines, i.e. to induce compliance with an unco-operative but otherwise non-aggressive person, would be obliged to accept the consequences in law in the same way as an ordinary citizen is liable for prosecution.
Officers could also be the target of private prosecutions, civil lawsuits and complaints to the Police Complaints Authority. A successful prosecution, complaint or civil suit against an officer could well have a negative impact on the officer's reputation and career prospects.
The potential impact on New Zealand's international good name The Government and the police top brass need to consider carefully the consequences of treating the introduction of the Taser as a police operational matter.
In November 2007, the United Nations Committee against Torture stated "the use of the Taser ex 26 weapons provoking extreme pain constituted a form of torture, and in certain cases it could also cause death, as shown by several reliable studies and by certain cases that happened after practical use". New Zealand of course is a signatory to the UN Convention against Torture.
Moreover, the UN code of conduct for law enforcement officials precludes officials from inflicting, instigating or tolerating any act of torture or cruel, inhuman or degrading treatment or punishment.
The repugnance of the state supporting the use of torture is reflected in comments by New Zealand's acknowledged greatest jurist, Sir Robin Cooke, who noted in one case, "I do not think that literal compulsion, by torture, for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament would not override them."
Thus, introducing the Taser is likely to expose the Government to justifiable accusations that it has breached our obligations under international law and the Bill of Rights.
Conclusion New Zealand is not a police state. The Commissioner of Police is entirely unsuitable as a decision maker on the introduction of Tasers. For the decision to have validity, it should be made in Parliament by a free vote on a law change, after a public inquiry.
The dangerous consequences of introducing the Taser raise huge doubts as to whether the Government should even be considering allowing police to be armed with the weapon.
* Barry Wilson is president and Ian McIntosh an executive member of the Auckland Council for Civil Liberties. Both are barristers.
