Nobody is above the law

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.

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  • ben

    Rauparaha, if transactions costs are important enough to prevent friends sharing opinions on smoking, then they are probably large enough to turn your analysis here on its head.

  • @ben
    I didn’t say that in the other post. If you need clarification then check out the comments subsequent to yours.

    On the matter of transaction costs here:

    1) Few would suggest that the costs of prosecution always outweigh the societal benefit, so you must be talking about the particular case and its minor offending. Prosecution of minor offences is always at the discretion of the prosecutor and the prosecutor bears the cost of filing the action. That is no different in private than in public prosecutions so I see no reason for a different rule.

    2) The very small number of private prosecutions taken suggests that they are hardly overburdening the judicial system.

  • Nick

    The story doesn’t mention why the police officer arrested the man in a private driveway. And without knowing that, it’s hard to judge whether this police officer behaved reasonably or not.

    But I don’t see why police officers need to fear private prosecutions, as suggested in this story. The judge let this police officer go without any conviction, despite finding her guilty of assault. When police officers are not punished for breaking the law. Then it doesn’t make sense for them to fear breaking that law.

  • steve

    the reason the police officer was discharged without conviction is because the punishment would not fit the crime. There are a number of similar cases where the same thing has occurred. this police officer would no longer be able to keep her job. Perhaps the more appropriate punishment would be the same as for anyone else who made a mistake in their job. such as a formal written warning, but not a criminal conviction.

    The police aren’t completely off the hook because it is going to be followed up by a private civil action. this will mean the police will have to pay some compensation to the victim, its practically an open and shut case, but the officer won’t be left unemployable.

    Sounds like a fair enough outcome to me and covers the moral hazard problem.

  • I entirely agree. To be clear, I support the law as it stands. The problem I have is the contention by Greg O’Connor that the police should be immune from private actions against them. I hope that clarifies my post 🙂

  • ben


    I did check the other thread. In response to my question, “What transaction costs?” you said:

    It’s not easy to get friends to reduce their smoking or form implicit contracts with them. You have to use up social capital to do it, which is costly to you. Mentioning to them that you don’t like their habit is unlikely to be enough to achieve efficiency.

    Is that not fairly summarised as, “if transactions costs are important enough to prevent friends sharing opinions on smoking…”?

  • @ben
    Continued in the other thread.