A police officer was recently found guilty in a private prosecution of assaulting a man that she arrested. She arrested him on his driveway and, since she didn’t have the power to arrest him on private property, it counted as an assault on him. The judge found her guilty but discharged her without conviction. The Police Association is concerned:
…fear of private prosecution could make officers more tentative in carrying out their duty. … “This was a constable who was carrying out her duties in good faith and made a mistake rather than acting maliciously. I think the lack of a conviction reflects that.”
I see this as a situation in which we, as a society, need to trust the police to do the right thing… but should probably keep a stick behind our backs just in case.
Police officers have a very important duty in our society and hold a lot of power. As with anyone who is in a position of power, there need to be checks on that power to ensure it is not abused. Surely private prosecutions are such a check: they allow private citizens to ask the judiciary to examine the actions of the police. Every bit of protection from these checks that is afforded to the police introduces more moral hazard.
When the chances of their actions being reviewed decrease, the incentive to keep them wholly within the letter of the law decreases correspondingly. The person with the most incentive to instigate a review of a policing action is the one who feels wronged. By removing the ability to bring a private prosecution we remove an important avenue for that person to bring an action against the officer who they think broke the law.
Fear of private prosecution SHOULD make officers more thoughtful when exercising their wide ranging powers. If they don’t break the law then they have no reason to fear. I see no reason to rely on the police to ‘be good’ by decreasing the incentives for them to comply with the law. If they are as upstanding as they claim then they should not be worried about the possibility of their actions being examined. Particularly when they’ll be examined by the same judiciary that we trust to judge the actions of all other citizens.
Finally, let us note that there are many offences in NZ which are strict liability and require no malice or intent. I presume the Police Association isn’t intended to promulgate separate standards for police and private citizens’ liability. Acting in good faith, but ignorance of the law, isn’t a sufficient defence to any crime and I hope the standards the police expect of themselves are higher than that.