The power of a police apology
After a career in charge of the courts, the Parole Board, and the IPCA, Judge Sir David Carruthers will soon retire. In Newsroom’s ongoing Watchdogs series, he speaks to Shane Cowlishaw about his work in keeping the police honest
After five years in charge of the authority that investigates police conduct, Sir David Carruthers is ready for a break.
“I’m leaving to become a florist,” the Judge, in possession of a cheeky sense of humour, jokes.
It’s hard to argue that the break is not deserved.
After becoming a Family and Youth Court judge in 1985, the 76-year-old was later appointed Principal Youth Court Judge followed by Chief District Court Judge before his retirement from the judiciary in 2005.
He then took over as chair of the Parole Board, a trying time that would see him preside over the ill-fated release of Graeme Burton who would go on to murder Wainuiomata truck driver Karl Kuchenbecker.
In 2012 he shifted to the Independent Police Conduct Authority (IPCA), and will soon step down when his five-year term comes to an end.
During his time in charge he has overseen several large investigations including those into the Urewera raids and the Roastbusters scandal.
The IPCA’s reports on both matters were highly critical of police; finding the raids “unlawful” and the Roastbusters investigation full of deficiencies.
Carruthers, a staunch advocate of restorative justice, recommended in his report on the Urewera raids that police apologise in person to those they had wronged.
They did and, as Carruthers puts it, the result was better than anyone could have hoped.
“Funnily that’s a huge New Zealand success story … at the end of our report we thought there was quite a lot of work to do for police to mend bridges and they rose to that brilliantly.”
“The result I hear, and I hear this from Tuhoe friends, is there’s a better relationship between Tuhoe and police than there was before (the raids).”
What the IPCA does
While large-scale investigations garner media attention, Carruthers’ office deals with a mountain of complaints.
The most recent annual figure was nearing 3000, including self-notifications from police on incidents where there had been deaths or serious injuries.
The IPCA has 28 staff, and they spend the bulk of their time triaging and working through these grievances.
Generally, complaints fall into four categories.
Firstly, there are those that are dismissed outright.
This can be for a variety reasons, for example because the case is still going through the court system.
But often they are frivolous, or about infringement notices such as speeding tickets which has angered the recipient.
Since there is already a mechanism in place to deal with complaints of this type, they are dismissed by the IPCA.
The most serious complaints are deemed “category one” and include incidents such as police shootings where the IPCA will investigate directly. At any given time, there are about 70 of these cases under investigation.
Category two complaints are also serious, but are sent on to police to investigate themselves, under supervision.
Then there are less serious cases, where conciliation is deemed an appropriate way of solving them.
Again with a restorative justice focus, Carruthers has invested a large amount of resources into this area and believes getting the two parties together is often enough.
“Sometimes all that’s needed is an explanation, sometimes things go wrong and actually what’s needed is an apology so people need to get round there straight away and say ‘look, really sorry, brought the young officer you had trouble with yesterday with me, he was rude to you, he was rude because yesterday he did his first cot death case and he’s got a little baby himself and he’s upset’, and normally people, when things are explained to them, are really understanding.
“There’s more to be gained by that than we sometimes realise.”
During Newsroom’s “watchdog” series, several commissioners have commented that they believe their departments would be more effective if granted extra powers.
An example is Privacy Commissioner John Edwards, who wants the power to impose penalties for breaches as a deterrent.
Ever the joker, Carruthers quips that his peers may be intoxicated with the prospect.
“Power mad … you get that with short people.”
Humour aside, he is friendly with Edwards and the other watchdogs but firmly believes that more power is not what the IPCA needs.
Its great strength is in its relationship with police, who are cooperative and open during investigations, he says.
Staff know anything said to IPCA investigators cannot be used against them in court, so feel comfortable expressing their views if things have gone wrong.
That could be lost if the system was changed, Carruthers believes.
“Our ultimate power is if our recommendations are not accepted by the commissioner and implemented we can table those publicly in Parliament, bring them to the attention of the Minister and the Attorney-General for public debate and police have clearly no interest in having a public debate about something that can be fixed.”
One small power he would like to wield is the ability to open his own investigation.
"I’m not bitching about it, as every Government entity will be like this, but we’ve been constrained by the resource we’ve got.”
Under law, the IPCA can only investigate something once it has been complained about, or when someone is injured or killed.
This seems absurd to Carruthers, who says he has often felt silly as a result of his inability to consider something that was obviously of public interest.
He cites the Kim Dotcom case, whose lawyers “paraded” around in court the fact that the IPCA had failed to investigate how police had handled the case.
“When Kim Dotcom first came to public attention there were helicopters, people swinging in over the gate etc and there was a lot of public comment about that and some concern, but no-one complained to us about that and no-one was hurt so we had no jurisdiction.”
Carruthers has made no secret of the fact that the IPCA has struggled to complete its work within the allocated budget.
A few years ago, he told a select committee that serious complaints which the IPCA would like to investigate itself were being passed onto the police because there were simply not enough resources.
Since then changes have been made and every complaint the IPCA wanted to investigate itself, it did.
But this has come at a sacrifice, with the increased workload pushing out the average time of an investigation.
Carruthers admits the IPCA has not been meeting its own timeline goals.
“We’ve done really well, but we’ve just recently slipped in the timeline for investigations.
“I don’t want to overegg this…but we’ve really had to be very careful about the money we’ve got, which means people to us. I’m not bitching about it, as every Government entity will be like this, but we’ve been constrained by the resource we’ve got.”
Technology has also increased the complexity of investigations, and thus the time they took.
With everyone now owning a smartphone, it means digital evidence including photos and video all need to be assessed.
While Carruthers knows a longer wait is not ideal, it’s the lesser evil.
“For us accuracy and fairness trump it each time, if we’re going to make a mistake we’d rather make the mistake of taking longer, than being wrong.”
Another function of the IPCA is to monitor the condition of police and court cells.
It’s something that, arguably, the IPCA is not financially equipped to do well.
A recent UN-funded report into segregation and restraint in New Zealand highlighted the shocking conditions of our detention facilities.
Singled out were police cells, particularly the custody suite in Wellington.
The underground facility was deemed dingy, with poor ventilation and often freezing.
Despite the poor heating, the report noted only a single blanket was allocated per person because of a lack of resources, while there were no minimum requirements regarding exercise, showers, or visits.
When asked whether the IPCA, whose head office is only a few hundred metres away, had failed in their responsibilities, Carruthers admits it is a fair question.
Some cells are “truly dreadful” and need to be upgraded immediately, something the IPCA is working on with the police and Ministry of Justice to implement, he says.
So, with his time in charge coming to an end, what else worries Carruthers?
Not much, he says, but tasers come to mind.
He won’t go as far as to say they are used too often, but believes now that they are available to police it is important their use is monitored closely.
“All I’m saying is those things are available, when they’re available they get used more and so the challenge for officers, and for us, is to each time think ‘was there another option’?”
The Newsroom Watchdogs interviews can be found here.