A minister phoning the police commissioner to talk about a court sentence – and then boasting about it on radio – goes straight to the heart of the rule of law, writes Graeme Edgeler.

Stuart Nash has resigned from his portfolio as minister of police following public statements that he had spoken to the commissioner of police to ask whether police would be appealing a sentence. There are suggestions this was about interfering with a prosecution, something ministers have to avoid doing. But even if there was no actual interference, the propriety of a minister making the call in the first place, and then going on radio to state he had, while also commenting about a particular court case, raises concerns about judgment. Nash remains in cabinet as the minister of economic development, forestry and oceans and fisheries.

Why is police independence important?

For the most part, the role of those people working in the public service is to give effect to decisions taken by the government. The police are a very clear exception to this, in both the Policing Act and the Cabinet Manual.

This is long-standing, and arises for all the obvious reasons: it’s important for the rule of law that those in political power cannot direct prosecutions away from their friends and toward their opponents. It’s important that the public can have confidence that the investigation and prosecution of offending is independent, so that people will be willing to assist police with their inquiries and to take part. In countries where police aren’t viewed as impartial, respect for the rule of law tends to break down.

Similar concerns apply to the courts, which Nash also took the opportunity to pass comment on. The existence of independent courts plays a beneficial role across society, even in things as varied as the willingness of others to invest in New Zealand businesses. If judges take their orders from the government, or even if the government is seen as trying to apply pressure to judges, public respect for the institutions may suffer.

It seems likely there was no actual interference here. Would that have made a difference?

The perception of interference is generally what we’re concerned about, because the alternative is much more serious. Actual interference in a prosecution might affect whether the courts would even be willing to let a prosecution continue. I can’t think of a case of this ever happening in New Zealand, but this has been known in the US: interference by the Nixon White House in the prosecution of Daniel Ellsberg for espionage around the Pentagon Papers was considered so egregious, it formed part of the reason a judge threw out the case.

Vigilance around interactions like those here between a government minister and the commissioner of police hopefully stops us getting even close to that.

Is the commissioner of police even involved in charging decisions?

No. Initial charging decisions are made by the officer in charge of a case. They may get advice from the police legal section or even a crown solicitor, but it’s up to the cop. More serious cases will have more senior officers in charge, and they can discuss it with others, but it’s on them. Prosecutors can advise if asked, and drop or change the charges later if they take responsibility for the prosecution, but at the start, whoever is investigating determines whether to charge.

For really high-profile cases (think the Christchurch terror attack), the commissioner or someone else senior may be apprised when a decision is made (so they can answer/decline to answer media questions at a press conference), but that’s for information. They aren’t making the decision.

Does the same rule apply to appeal decisions?

Yes, but also no. The commissioner still isn’t involved, but police don’t really make the decision either, because appeal decisions are made at Crown Law. Whoever was responsible for the prosecution at that point (which might be the police legal section, or possibly a Crown prosecutor by now) may decide it is a good idea to appeal, and they will refer the matter to Crown Law to consider. They make the decision, not police, and not even Crown prosecutors. Prosecution appeals are generally only brought if there is a particular public interest in establishing something about the law.

So, Stuart Nash resigned because he asked someone with no power to do something that person couldn’t do?

Asking the police commissioner about an ongoing case (and potentially interfering with a prosecution) wasn’t the only thing Nash did. It was merely the first thing he did. Nash also: publicly commented (more than once) on the result of court sentencing, something the Cabinet Manual prohibits, and Nash said that judges “need to read the room on this”, which adds a risk not only to the independence of police, but also the independence of courts.

Ministers exercise the powers of the Crown. They should not be telling judges how to rule, least of all in cases where the Crown is one of the parties.

Nash wasn’t minister of police at the time of the phone call – does that make a difference?

No.

Not least because he was minister of police when he made the comments on radio, but also because under New Zealand’s constitutional system of cabinet government, every minister can act as any other minister. The Cabinet Manual bans all ministers from interfering with prosecutions and all ministers from publicly commenting on sentences or interfering with court cases.

Nash was a minister at the time, and he was a minister when he spoke on the radio about what he had done and how he still felt about the decision.

Why has he only gone from the police portfolio then?

The Cabinet Manual is a set of guidelines for ministers. It doesn’t provide for an automatic loss of minister office for any breach. It’s up to the prime minister to decide whether a breach is serious enough for any punishment, and whether that’s enough is something voters can take into account.

Is there anything more we need to know about?

We know a little about the case, but it would be good to know whether police asked Crown Law for permission to appeal.

Also, one of things that should help protect police independence is the commissioner of police. Did the commissioner tell the minister to stick to his knitting and not to make such comments again? Presumably not, given Nash went on radio and boasted? Did the commissioner alert the Cabinet Office that it had happened? And if not, should steps be taken to make sure that should this happen again, we don’t have to rely on a live radio confession for the issue to be resolved?

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