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by Graham Adams / Noted /19 March, 2018
Questions linger over the motivation for setting up a sham traffic stop to identify Exit members and exactly how often similar breaches of the law occur.
The IPCA report into a bogus alcohol checkpointthat police used to identify attendees at a pro-euthanasia meeting was finally delivered last Thursday, well overdue and seriously underweight.
Although a brief eight pages, it took nearly 18 months before it was ready for public release after complaints had been laid in 2016, and eight months after the IPCA said the report’s release was imminent.
It offers startling insights into police practice, none of them heartening. Of course, its major finding — that the October 2016 vehicle checkpoint in Lower Hutt was illegal — could not have come as a surprise to anyone acquainted with the law. It was such a flagrant abuse of police powers granted under the Land Transport Act — which restricts checkpoints to matters of land transport enforcement such as testing alcohol levels and checking car registration — that the police took the unusual step of handing themselves into the Independent Police Conduct Authority for what was widely expected to be a public flogging.
As it turned out, the report is quite gentle with the police — as, indeed, is often the way with the IPCA. Nevertheless, despite the indulgent, softly, softly approach, it is thoroughly alarming.
First, neither the Detective Senior Sergeant nor Detective Inspector who ordered the checkpoint to identify the elderly attendees at the Exit meeting stopped to consider whether it was legal. They rang their superiors, the Acting District Commander and the Area Commander, to get approval for the checkpoint shortly before it was implemented. But both failed to warn it would be illegal under the Land Transport Act (and would also not be covered by general powers to prevent suicide as permitted by section 41 of the Crimes Act). No legal opinion was sought and they allowed it to proceed.
As the report notes: “The Acting District Commander and the Area Commander should have recognised that the proposed actions were unlawful and should have advised the officers.”
Just as worrying was the admission by the Detective Senior Sergeant that “police have used similar checkpoints in the past for intelligence purposes”. And the five officers who conducted the bogus alcohol traffic stop also said they assumed it was fine because checkpoints had been used for gathering intelligence before.
It seems extraordinary that all the police involved — including very senior officers — either didn’t understand that the checkpoint was illegal, or didn’t bother to consider its legality, or accepted that it was de facto police policy to use checkpoints primarily for intelligence-gathering.
The authority skirts around this last possibility by noting it “is not aware of any other instances where checkpoints have been established for purposes other than land transport enforcement and have not gathered any evidence which supports this assertion. In addition, there is no police policy which supports the [Detective Senior Sergeant’s] view [that they are used for intelligence].”
This is a long way from saying it hasn’t happened before or even that it is uncommon. As Otago University law professor Andrew Geddis told Noted: “Absence of evidence is not evidence of absence.”
Assistant Commissioner Bill Searle, on behalf of the police, accepted the IPCA’s findings, admitting in a statement that “establishing a vehicle checkpoint to identify meeting attendees was unlawful”. But he excused the officers’ behaviour because “our staff acted in order to protect life and did not intentionally break the law”.
This indicates the police hierarchy accepts that all the officers involved did not understand they were breaking the law, because if, in fact, they did know the checkpoint was illegal they must have been intentionally breaking it.
For the rest of us, not knowing the law is no excuse, but apparently, it serves as one for the police, even though they swear an oath to uphold it.
And in what way could they be acting to protect life when they admitted they had no concerns that any of the attendees at the Exit meeting were in imminent danger of committing suicide? Turning up announced at the homes of some 15 of them, and asking whether they had a secret stash of Nembutal and about their association with Exit is hardly going to be reassuring if any one of them had, in fact, been suicidal. There seems to have been no consideration given to just how frightened and threatened many of these mostly elderly people might — and did — feel at police appearing on their doorstep.
The report’s account of the police officers’ alarm about the attendees’ well-being thoroughly stretches credulity. The Detective Inspector described covertly monitoring the Exit meeting: “It wasn’t until we heard [them] conveying all these possibilities to commit suicide… that we were of the view that the risk level had raised considerably… There was a real possibility that [someone could commit suicide] within five to seven days once they had that information.” (The report notes: “No explanation was given for how these timings had been arrived at.”)
Yet, the officers clearly knew beforehand that they were monitoring a meeting of an organisation whose sole purpose is to provide information on how to end one’s life peacefully. In fact, the Detective Senior Sergeant and Detective Inspector told the Authority that they asked for a surveillance warrant for the Exit meeting because they “suspected that some of the conversations at the meeting would be about supplying and using pentobarbitone”.
How could they be surprised and alarmed when Exit members discussed exactly that?
The checkpoint was triggered by the investigation into the death of Annemarie Treadwell, a 77-year-old Wellington woman who died in June 2016 after taking pentobarbitone, aka Nembutal.
It led to Wellington Exit co-ordinator Susan Austen being charged with three counts of importing pentobarbitone as well as a charge of aiding Treadwell’s suicide.
Austen pleaded not guilty to all the charges, which were a result of a police operation that collected her emails and bugged her phone and her house — including recording the Exit meeting immediately before the checkpoint was set up to identify attendees.
The police claim the reason the checkpoint was set up and names taken was concern for the welfare and safety of the Exit members who attended that meeting and had nothing to do with the investigation into Treadwell’s death.
The authority noted it would be concerned if the subsequent welfare visits to the homes of the meeting attendees “had been utilised as a tactic to progress the police investigation into the activities of Ms Z [the woman they believed had counselled Treadwell before her death]”.
Yet, a Lower Hutt Exit member, who wasn’t named, commented to Stuff about the police visit to her home after she had been stopped at the checkpoint: “[The police] said they were investigating the activities of the leader of the [Exit] group. They did not explain further what they meant by this.”
Also, another of those visited, “Mr W”, told the IPCA he found the welfare visit “odd”, and stated: “I think they were there for other reasons than just about my state.”
In February, Austen was found guilty on two of the charges of importing pentobarbitone but acquitted on the much more serious charge of aiding a suicide, which carries a maximum sentence of 14 years’ imprisonment.
The jury apparently accepted the defence’s contention that simply possessing a lethal drug, whether it is intended to be used or not, could have a “profound palliative effect to reduce suffering” that may even extend life by reducing anxiety from anticipating an unpleasant death.
Furthermore, Treadwell was not only a member of Exit but also an activist for the euthanasia cause and had submitted an impassioned plea for a law change to the Health select committee looking into assisted dying. She also had written a note found after her death asserting that no one had coerced her or influenced her in any way to take her own life.
Exit International’s head, Dr Philip Nitschke, described Austen’s trial as a “show trial with one objective — to ‘send a message’ and frighten any elderly New Zealander tempted to put in place a personal, practical end-of-life plan”.
For the police to visit Exit members who attended a lunch devoted to discussing a perfectly legal act such as suicide smacks of overreach, if not a campaign of harassment or intimidation, especially as it was conducted during a time of heightened political sensitivity over euthanasia. At the time the checkpoint was conducted in 2016, the parliamentary select committee inquiry into New Zealanders’ attitudes to assisted dying was still under way.
Nitschke viewed it as a direct attempt to intimidate Exit members. And many people will not be convinced that concern for the Exit members’ welfare was the real reason for the checkpoint or the home visits. At Susan Austen’s trial, when the police said they had obtained the names of the Exit members to make sure they were okay, her supporters laughed.
Maryan Street, the president of the End-of-Life-Choice Society, which is agitating for a law change but is not associated with Exit, said last week of the IPCA report: “The finding confirmed that those stopped at the bogus checkpoint were targeted for their beliefs and lawful activism, not because of any threat to law and order or public safety.”
She asked the police to provide “assurances that [the] campaign for a law change will not be targeted with unwarranted surveillance and intervention”.
Inevitably, questions were raised about why the checkpoint was authorised in the first place. Wellington human rights lawyer Michael Bott said, after the checkpoint hit the news in 2016: “It appears to be some kind of moral crusade driven from someone on top to stop people going to a public meeting to learn about Exit and their goals.”
Others at the time queried whether it had been politically motivated by those opposed to a liberalisation of the law. Act MP David Seymour asked: “There is then the question of motive. Who was pushing for this surveillance, what was their motivation, and why were the Police Minister and Solicitor-General not aware of such a politically sensitive operation?”
A spokeswoman for Judith Collins, the then Police Minister, told media the case was an operational matter for police, and directed all questions to them.
When Noted asked Michael Bott last week whether he believed the checkpoint and intrusions into the lives of Exit members were politically motivated, he replied: “I do not think a particular party was involved. But that certain senior officers are prepared to condone the unlawful detention of New Zealanders who had attended an Exit meeting does show perhaps the strength of their collective personal view about the subject matter of the [Exit] meeting.”
Professor Andrew Geddis, while concerned by the police’s illegal behaviour, identifies a wider problem. He told Noted: “There is the bigger picture of the police intruding into the homes of elderly people — many of whom will never have come to police attention before — simply because they want to consider end-of-life options. Because our law treats all decisions to end your life for any reason as being a ‘suicide’, it authorises anybody (including the police) to intervene to try to stop this from occurring.
“I think this is wrong — the law ought to distinguish between ‘suicides’ and ‘assisted dying’, which is what David Seymour’s End of Life Choice Bill before Parliament does.”
It is richly — and sadly — ironic that the IPCA report should be made public at the same time a debate is raging over the police’s pursuit policy, sparked once again by eminently avoidable deaths. A few days before the report appeared, two young people died in a crash fleeing police south of Nelson, which also killed a 53-year-old woman in another car.
Police chases saw 10 deaths in 2017, and 22 people die since 2014, yet the police stoutly defend them as essential to maintaining law and order. “Protecting life” doesn’t seem to feature. Those who die are presumably collateral damage in an overriding goal of never letting even a minor offender evade the law.
Nevertheless, we are asked to believe that the police were so concerned about protecting the lives of elderly people who were educating themselves about how to end their lives peacefully at a time of their choosing that they had a squad of police officers urgently set up an illegal checkpoint to harvest their details and visit them at home to quiz them about their association with Exit.
The Privacy Commissioner, John Edwards, investigated the collection of personal information at the checkpoint, separately to the IPCA inquiry. His report, which was also made public last Thursday, noted: “Some complainants said the visits from police made them feel uncertain about their ability to speak freely and anxious that more visits would follow.”
He concluded: “Police approached them after unlawfully collecting their information, and questioned them about a socially and politically sensitive subject. It is fair to say that the actions by the police officers caused those complainants harm.”
The matter may not end here. After the IPCA report was published, Andrew Geddis tweeted about what he would do if he had been subjected to an illegal checkpoint: “Well, if I were one of those stopped, I'd be getting my lawyer to ask the police how much they’re going to give me for breaching my [NZ Bill of Rights Act] rights ... and readying a class action if they aren't forthcoming.”
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