Dialogue: Law must shield police who put lives on line

When court decisions on name suppression are seemingly hit and miss, police deserve special legal consideration, says WAYNE MAPP*.

Last Friday, our courts handed down two decisions on name suppression. In one, two High Court judges named the constable involved in the shooting at Waitara.

The other, by the District Court in Palmerston North, granted name suppression to the first person charged in relation to the anthrax hoax letters.

Both cases received wide publicity.

It is curious that our courts would not grant name suppression to a police officer when it is widely agreed he was acting in the course of his duty, yet name suppression would be granted to a person charged in circumstances in which there could be no lawful purpose for the alleged offence.

Can we find a principled way forward that will protect police officers in the course of their duty? We ask police officers to be our guardians, to act quickly and decisively to protect us in life-and-death situations. Surely the police deserve some special protection.

They should not be above the law but there should at least be legal recognition of their difficult job.

I am sure the last thing New Zealanders want is police officers thinking twice before acting to protect either themselves or the public when put in a life-threatening situation.

There can be no justification for the naming of a police officer until at least a prima facie case of liability is established.

The court is in the process of deciding whether there is a case to answer against Constable A in terms of the private prosecution brought by the victim's family. If there is, there will be a trial. If there is no case to answer, he would expect to go back to work.

What, then, is the public interest in knowing his name? The answer is none. In Constable A's situation, he should have the same right of anonymity as any other police officer involved in an incident with an armed offender.

This has been the situation in all armed offender incidents and it has served both the country and the police well.

Some in the media have chosen not to name Constable A. That is to be applauded. Others, such as the Herald, have named the officer. While this is disappointing, the media are not to blame.

They, except the National Business Review, have shown restraint for more than a year since Constable A's name became known. It was not until the High Court denied name suppression to Constable A in the private prosecution that some media exercised their right to print it.

The problem is in the law, not the judgment of the media.

We must provide greater protection for police officers doing their job.

My colleague Paul Hutchison has proposed a member's bill which would protect the name of a police officer pending the outcome of the Police Complaints Authority inquiry. An officer's name would become public only if charges were laid.

At the time Dr Hutchison's bill was drafted, it was not envisaged there could be a private prosecution for murder.

On the same principle, name suppression should be granted during the depositions phase. Publication should be permitted only if there is a case to answer.

This case has also raised the question of the effectiveness of the Police Complaints Authority. Is it appropriate for the authority to delay hearings until every other proceeding in the matter has been completed, or is this another example, all too common, in which we experience inordinate delay?

An earlier decision by the authority might have avoided the private prosecution. The family would have had the result of an independent investigation if the authority had reported earlier.

We must be careful to protect the police. They have a difficult job. Naming the officer is not an example of public scrutiny leading to more accountability. Instead, it is more likely to result in an overly cautious police force.

Accountability is important, but that role is best left to the Police Complaints Authority. The authority needs to act more quickly to give the public confidence that police are doing their job fairly and lawfully.

The Weekend Herald editorial does not justify the naming on the grounds of public interest; it merely says the court said it could name the officer and, because it had named people appearing before the courts before, asked why a police officer should be treated any differently.

The Herald could have waited for the outcome of the preliminary hearing of the private prosecution before naming the constable, but we cannot blame the newspaper for choosing to do what it is entitled to by the courts.

We must fix this injustice by ensuring that our courts are given direction to protect the identity of police officers until it is found they have a case to answer.

We must stand by our police, who have the often difficult job of protecting the public. If we want police officers to put their lives on the line in the course of duty, we must give them protection under the law for doing their job.

Constable A will live with his actions for the rest of his life. If the court finds he has no case to answer, what justification do we have for making his life, and that of his family, that much tougher?

* Dr Wayne Mapp is the National Party's justice spokesman.