New Zealand Law Society - Authority finds breach of 'journalistic privilege' during unlawful search

Authority finds breach of 'journalistic privilege' during unlawful search

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The Independent Police Conduct Authority (IPCA) has found that the Police's unlawful search of Nicky Hager's property in 2014 resulted from an unwitting neglect of duty.

Earlier this year the Police apologised to Mr Hager for multiple breaches of his rights during a raid on his Wellington home and subsequent breaches of privilege and obtaining private information from third parties.

In October 2014 a ten-hour long search on the house was conducted as part of a Police investigation into the source of Mr Hager’s book, Dirty Politics, which featured material sourced from hacked emails leaked to him by an anonymous source.

The IPCA says 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", says Authority Chair, Judge Colin Doherty.

Police had searched Mr Hager's property for evidence regarding the identity of a hacker known as 'Rawshark' who confidentially provided Mr Hager with information for Dirty Politics.

Mr Hager sought a judicial review of the Police's search warrant and, on 17 December 2015, the High Court in Wellington issued a judgment declaring the search warrant was "fundamentally unlawful" as Police had failed to comply with their 'duty of candour' when drafting it. In particular, Police did not mention that Mr Hager was a journalist and could claim 'journalistic privilege' to protect his confidential source.

In addition, the Authority found that:

  • Police breached privilege and thereby acted unlawfully by taking investigative steps to act on information they observed or collected during the search.
  • The Police's 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.
  • Police failed to fulfil their duty of candour when applying for production orders against Air New Zealand and Jetstar in relation to Mr Hager's travel.
  • Those applications were defective in that they failed to disclose reasonable grounds to believe that Air New Zealand or Jetstar held evidential material.

The IPCA says, as a result of this case, Police revised their policy on privilege by (a) clarifying the responsibility of officers to identify privilege issues when applying for a search warrant or planning the exercise of a warrantless search power; and (b) prescribing the procedures to be followed during the execution of a search when privilege is claimed, or potentially privileged material is identified.