New Zealand Law Society - Pre-charge warning use inconsistent says IPCA report

Pre-charge warning use inconsistent says IPCA report

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An Independent Police Conduct Authority (IPCA) report has found that the Police practice of issuing pre-charge warnings to offenders is being used inconsistently and sometimes inappropriately.

The Review of pre-charge warnings report came from a wider review initiated after the IPCA investigated a specific complaint from a Bay of Plenty Police officer about the way the pre-charge warning policy was being applied locally.

The IPCA has examined available statistics on the use of pre-charge warnings, and interviewed custody supervisors and front line staff in four Police districts (Bay of Plenty, Waitemata, Southern and Waikato) about their perceptions of pre-charge warning policy and practice in their local area.

It has concluded that pre-charge warnings are a practical way of resolving low-level crime and are justified from a cost-benefit perspective.

"However, there are also risks with a policy that permits enforcement officers to deal informally with offenders in a way that affects their future," the report says.

"These risks must be addressed by a transparent system of checks and balances to ensure that decision-making is consistent and fair to both offenders and victims, and properly takes into account the interests of the community.

"In the Authority's view, the existing policy and its application fails to provide that."

Inconsistency around New Zealand

The report shows that pre-charge warnings are used in 37% of eligible cases. However, there is substantial variation between Police districts - from nearly 50% of eligible offenders in Southern Police District to only 23% in Waitemata Police District.

Cases receiving a pre-charge warning, February to April 2016

Police District Arrests eligible for PCW PCWs issued PCWs as % eligible arrests
Northland 328 111 33.8%
Waitemata 701 163 23.3%
Auckland City 919 385 41.9%
Counties Manukau 797 235 29.5%
Waikato 663 296 44.7%
Bay of Plenty 1070 492 36.0%
Eastern 521 142 27.3%
Central 690 222 32.2%
Wellington 786 269 34.2%
Tasman 369 135 36.6%
Canterbury 1156 445 38.5%
Southern 602 294 48.8%
Total New Zealand 8602 3189 37.1%

Lack of clarity 

The IPCA says it is unclear whether victims must be consulted about the possibility of a pre-charge warning before it is given. It is also unclear whether pre-charge warnings should be used when the victim is seeking reparation for financial loss connected with the offence, since the giving of a pre-charge warning generally means that no reparation can be obtained.

"The views of victims should always be sought and considered in cases where the decision is finely balanced or where reparation is sought," IPCA Chair Sir David Carruthers says.

"Where the victim is seeking reparation, a pre-charge warning should never be given unless the victim agrees or the payment of reparation is realistic and enforceable."

Previous criminal history

The IPCA says there is also a lack of clarity about the extent to which pre-charge warnings should be given to offenders who have previously been convicted or received a warning or Police diversion. In some cases, warnings are given to offenders with substantial criminal histories.

While this may be justified in some cases, the IPCA recommends to Police that the policy be revised to make clear the circumstances in which this is justified.

Differing treatment of Māori and New Zealand European offenders

The IPCA says when it first looked at the use of pre-charge warnings in 2015, there were considerable differences in the extent to which they were being used for eligible New Zealand European and Māori offenders in a number of Police districts.

As a result, in early 2016 Police National Headquarters alerted Police districts to the disparity and directed staff to work towards reducing it. The IPCA says the differences were consequently reduced. In fact, in February 2016 there were very few differences between the two groups in any Police district, it says.

"Nevertheless this has not been a consistent pattern and some disparity between the ethnic groups remain," it says.

Pre-charge warnings by ethnicity

Police District February to April 2015 April 2016
NZ European Māori NZ European Māori
Northland 40% 25% 46% 22%
Counties Manukau 34% 19% 36% 18%
Waikato 55% 24% 52% 39%
Canterbury 50% 27% 36% 26%

The IPCA notes that there are a number of possible reasons for the disparity in the statistics. It says there may be systematic differences between Māori and non-Māori offenders.

"An audit of the use of pre-charge warnings between July and September 2015, undertaken by the Police Data Quality and Integrity Team, provides some support for the existence of such systematic differences. It found that, amongst those who did receive a pre-charge warning, 51% of non-Māori had no prior criminal convictions compared with only 26% of Māori. It is reasonable to assume that there was a similar difference between Māori and non-Māori who did not receive a pre-charge warning."

The IPCA says it ought not to be assumed that the disparity is the result of differential treatment of Māori offenders on account of their ethnicity. It says it has not come across any evidence that clearly demonstrates differential treatment on the basis of ethnicity.

"However, the possibility that it exists is enough to suggest that more guidance on the exercise of the discretion is desirable."

Lack of integration with other alternative actions

The report says pre-charge warnings are not the only alternative to prosecution and conviction that are available to Police following an arrest where some action is warranted. Offenders may instead by given a verbal warning, referred to a Community Panel or iwi Panel, or prosecuted and offered Police diversion.

However, it says these various options are not properly integrated, and the way in which they are currently used therefore produces a number of anomalies. Two particular problems are emerging:

  • It appears perverse that a verbal warning should be regarded as sufficient to deal with an offence that is too serious to be dealt with by way of a written pre-charge warning. Verbal warnings may often be given on the street and are therefore not subject to the same checks and balances as pre-charge warnings. The IPCA says the relationship between pre-charge warnings and vergal warnings requires clarification.
  • While a number of officers said they would bring a prosecution and recommend Police diversion when reparation was an issue, the IPCA says the difficulty is that Police diversion has been largely confined to first offenders. It says the relationship between pre-charge warnings and diversion needs to be more clearly articulated.

Clear and consistent approach needed

In conclusion, the IPCA says it has no evidence that Police are routinely making unfair or unjustified decisions about pre-charge warnings. It says the specific policing demands and inherent nature of different Police districts will also influence practices.

"However, a clear and consistent approach to key aspects of the decision-making process would ensure operational transparency and integrity.

The IPCA recommends that the pre-charge warning policy be reviewed. The relationship between pre-charge warnings, verbal warnings, and diversion and the inconsistencies in their application should be addressed.