One of these cases is not like the other, one of these cases is not quite the same. Can you tell why?

So the police investigate a complaint by the Prime Minister against a member of the media, where it is alleged that a "private communication" was intentionally intercepted using a covert recording device. Even though Assistant Police Commissioner Malcolm Burgess labelled Bradley Ambrose's action as clearly illegal, the decision not to take him to court is explained on the basis that "a prosecution was not required in this instance."

However, in the next breath he effectively admitted there actually wasn't sufficient evidence to convict Mr Ambrose of any offence as: "In the view of police investigators, the recording was "most likely" on purpose, but at the least "reckless"."

Then the Police investigate a referral by the Electoral Commission against Radio Live, where it is alleged that the provision of an hour of radio time to the Prime Minister a few weeks prior to the election is in breach of the Broadcast Act. The decision not to prosecute is explained on the basis that: "We have determined that there is insufficient evidence to satisfy the requirements for prosecution."

This is despite the Electoral Commission concluding that the relevant programme was an "election programme", and thus broadcasting it is unlawful. 

Thus in one case, uncertainty about the evidence leads to a simple "we're not certain enough there would be a conviction to warrant pursuing the matter" message. On the other, uncertainty about the evidence is glossed over in order to deliver a stern "you broke the law and we'll ping you if you do it again" message. And the reason for the different approaches is ... ? 

Comments (4)

by Andrew R on March 30, 2012
Andrew R

 And the reason for the different approaches is ... ? the police is a pro-National/ACT political organisation and has been for a long time? 

by william blake on March 30, 2012
william blake

...is it something to do with Key perceiving Mr Ambroses' actions as being a personal affront and having the ego to see through a prosecution, whereas the case against Key is an abstraction with no specific victim? or is it just that JK is a bit of a wanker?

by Scott Chris on March 31, 2012
Scott Chris

Thus in one case, uncertainty about the evidence leads to a simple "we're not certain enough there would be a conviction to warrant pursuing the matter" message. On the other, uncertainty about the evidence is glossed over in order to deliver a stern "you broke the law and we'll ping you if you do it again" message.

Heh, you make a good point. (I thought the comparison you drew between the Ambrose case and Gordon Brown's 'overheard' remarks was an interesting one too) 

I guess the difference is in where the police's loyalties lie, which implies that they are biased in favour of institution which governs them.

Perhaps you are suggesting that the police should at least attempt to appear apolitical and that any allegations of wrongdoing against the government should be investigated by and independent body.

 

 

by Andrew Geddis on March 31, 2012
Andrew Geddis

Scott,

The basic problem is the Police get thrown into highly charged political situations like these that invite scrutiny and comparison - but then don't help themselves by somewhat inconsistent  behaviour (why, for example, did the decision on prosecuting Mr Ambrose deserve an entire press conference and personal explanation from the Assistant Commissioner, whilst the Radio Live decision was dealt with by way of regular old press release? And there is the problem that the Assistant Commissioner's headline message on Mr Ambrose ("There was unlawful action") did not match his later comments on the evidence).

It seems to me that the Police could help themselves a bit by effectively delegating some of their prosecutorial discretion in this field - if the Electoral Commission reaches the conclusion that an electoral law offence has been committed, then the Police ought to take it before the Courts for an independent assessment (unless there are strong public interest reasons not to). Of course, that might need some tweaking of the Solicitor General's guidelines - but surely we've seen enough of these sorts of allegations/police refusal to proceed to take such a step.

Incidentally (and not in relation to your specific comment), one of the reasons the Police pointed to for not proceeding against Radio Live - that the Broadcasting Standards Authority didn't think the show was an "election programme" - seems to me an irrelevant consideration. As Graeme Edgeler (finally) convinced me in the comments section here, the BSA shouldn't have been addressing this issue at all, so it's views on what is/isn't an election programme are of no real weight.

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