In this blog ABM Consultant and undercover operations expert, George Harrison, discusses the recent scrutiny of New Zealand Police following their undercover investigation of the Red Devils motorcycle gang, drawing comparisons to the 1999 Regina v Campbell case in Canada.

The New Zealand Red Devils Undercover Operation
New Zealand Police believed the Red Devils aspired to become a chapter of the Hell’s Angels, a gang notorious for their involvement in large-scale hard drug dealing. An undercover officer was assigned to infiltrate the gang. However, to dispel the gang’s suspicions about the officer, police brought a criminal charge against him, involving the drafting of a false search warrant and the later deception of defence counsel and judges.

While acquitting police of bad faith and accepting that they had never intended to mislead, Justice Simon France nonetheless found the officers, including a very senior detective superintendent, had engaged in conduct that amounted to abuse of court processes.

In what appears to be a rather harsh observation, he also found that the police belief that they had sign-off from a District Court judge for their actions was reckless. Justice France found the judge (who is since deceased) was not adequately informed about the operation. However, because he appears to have raised no questions, he found the police belief that they had his approval was understandable. However, having found the misconduct, Justice France decided that, to protect the integrity of court processes, the entire prosecution had to be dismissed despite no one being seriously misled in or any defendant’s rights being infringed – a sharp rebuke to police.

The 1999 Canadian Case of Regina v Campbell
While Justice France’s decision may be unique in New Zealand; it is not unheard of in the world of law enforcement. In fact his decision appears, in many respects, to mirror the decision of The Supreme Court of Canada (SCC) in the 1999 Canadian case of Regina v Campbell, a case where the court found Canadian police ‘violated’ the Narcotic Control Act by holding out a large quantity of hashish for sale to senior “executives” in a drug trafficking organization as part of a reverse sting operation.

The appellants, as purchasers, were charged with possession of cannabis resin with intent to sell. The trial judge found the appellants guilty as charged but, before sentencing, heard their defence. They argued that the reverse sting constituted illegal police conduct which not only shocked the conscience of the community but was so detrimental to the administration of justice that it warranted judicial intervention. However, unlike Justice France, the court implied that the police acted in accordance with legal advice having consulted with Crown prosecution services.

Considerations – The Constitutional Principle and Public Interest v the Purpose of Investigations
Although the Supreme Court considered:

1. The Constitutional Principle that everyone is subject to the ordinary law of the land, regardless of public prominence or governmental status.
2. The public interest that police officers carry out their duties in accordance with the law

they also recognized a justification for public officers to commit acts that would otherwise constitute offences to avoid jeopardizing prosecutions, providing officers acted reasonably and proportionally for the purpose of investigations. The SCC held that:

1. Police do not enjoy immunity as agents of the Crown when engaged in law enforcement.
2. Police do not enjoy immunity through a law enforcement justification at common law.
3. If immunity is needed, it is for Parliament to define the nature and scope of the immunity.

Regarding the issue of whether the proceedings against the appellants should remain because of abuse of process, the SCC stated:

“The conclusion that the police conduct in undertaking a reverse sting is, on the facts of this case, illegal does not of itself amount to an abuse of process or, to take it a step further, entitle the appellants to a stay”.

The SCC then ordered a new trial, adding:

“It will be up to the trial judge to determine whether or not a stay is warranted in light of all the circumstances, including the countervailing consideration that police conduct did not lead to any serious infringement of the accused’s rights, police were careful to keep control of the drugs and ensure that none went on the market, and the acknowledged difficulty of combating drug rings using traditional police methods.”

Conclusion – The Affect of Regina v Campbell on Canadian Law Enforcement
In light of the Regina v Campbell decision, the Canadian Parliament introduced legislation[i], commonly referred to as The Lawful Justification Scheme, which permits designated police officers, under certain conditions, to commit acts or omissions that would otherwise constitute an offence. In addition, parliament amended the Controlled Drugs and Substances Act to permit police to undertake reverse sting operations such as that undertaken in the Campbell case.  Since the legislative amendments in 2002, undercover operations in Canada have continued successfully without major issues.

The Lawful Justification Scheme would undoubtedly provide a workable framework for New Zealand law enforcement. Although the New Zealand case differs from the Regina v Campbell case with respect to the nature of the unlawful activities – The undercover operation undertaken by New Zealand police was reckless and ill-conceived. Drafting and executing a false search warrant and supporting documentation, and misleading the judiciary, will be considered an abuse of process and thereby bring the administration of justice in disrepute – any review undertaken by New Zealand Police authorities would be wise to consult other law enforcement agencies in Canada that have faced, and successfully overcome, similar issues in the past.

Police operations are under closer scrutiny and covert police operations, in particular, must have a higher degree of strategic planning, oversight and transparency. Senior police personnel must have more effective systems to evaluate, approve and manage all aspects of covert operations, including undercover operations, informant/agent recruitment and management, and both physical and technical surveillance. After all, “If you screw with the rules they multiply.” – Corwin’s Law.

George is an undercover operations and surveillance expert who regularly gives guest speeches on investigative techniques and undercover operations at a range of universities across Canada. George also advises ABM on the development of abmpegasus software for managing undercover operations.

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