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Police photographing Māori woman at checkpoint 'arbitrary, unlawful' - IPCA

Police have been found to have unlawfully detained a Māori woman and taken photos of her and her partner at a road checkpoint, breaching the Privacy Act, the Independent Police Conduct Authority (IPCA) has found.

Police file image Source: rnz.co.nz

The report said mid-morning on 16 November 2019 police set up a road checkpoint near a "fight night" event in Ruakākā, Northland where they knew a large number of gang members would be. Not all attendees had gang affiliations.

Officers took photos of a number of gang members or associates, for the purposes of intelligence-gathering, while they were legally driving to an event. The IPCA said it appears this had happened on multiple other occasions.

Officers thought they were legally able to take the photos, and were not instructed to tell the subjects of the purpose of taking the images.

The complainant, referred to as Ms Z, was not a gang member. She was asked to stop at the checkpoint, breath-tested, and had her ID, warrant of fitness and registration checked.

Police then asked many people, including Ms Z, to pull over for further checks. Most of them were gang members and/or going to the fight night, the report said.

"The Authority found that although the initial checkpoint was lawful, at the point Police required Ms Z to pull over to the side of the road for intelligence purposes she was unlawfully detained.

"From that point onwards section 114 of the Land Transport Act 1998 was used as a pretext for intelligence gathering, which was a disingenuous and unlawful use of the section," authority chair Judge Colin Doherty stated in the report.

"Ms Z rightly felt that she was not free to leave; and the limitation on her freedom of movement was no longer transitory... The direction that Ms Z pull over to the side of the road amounted to detention that was not based on any legislative power to arrest or detain. It was accordingly arbitrary and unlawful."

Photos of Ms Z and her partner in the car, referred to in the report as Mr Y, were taken, as well as of her licence.

"Officer B approached the open passenger window. He immediately recognised the clothing of the passenger (Mr Y) as something the Head Hunters would wear. He asked Mr Y for his name, but he did not respond. Officer B was aware that Mr Y, as a passenger, was not required to speak to him. Ms Z then said Mr Y did not need to talk to Police and the passenger window began closing. Officer B took two photographs of Mr Y with his iPhone as the window was closing."

Ms Z was then talking to an officer who had a camera on his phone.

"They looked to be taking photographs of her driver's licence and pointing the camera into her car. She told them they did not have permission to do so, and the officer responded that it was no different from them viewing her licence. At this point she believed that they were videoing.

"She says that one of the officers stood in front of the car, which physically stopped her from leaving. She told him that they had no reason to keep her there, and he responded that he was checking her warrant and registration, which Ms Z believes was an "afterthought". She said that they had already done so and started the car. When the officer moved away, she accelerated to leave. However, Police had a "full on camera" and were taking photos through the window. She believes she was probably at the side of the road for between four and five minutes.

"Ms Z told us that she made a request under the Official Information Act 1982 for the photographs taken by Police. However, she says the photographs provided to her, and to the Authority, were the ones taken when she had gone back to speak with the officers. The photos that she believes were taken prior to this, including of her driver's licence, were not provided."

The woman also believed those pulled over, many of whom were Māori, were racially targeted.

"Ms Z recalled speaking to other attendees of the events, who said 'it happened to them too'... She believes that Police thought they could get away with it and pushed boundaries that they would not otherwise push. That is, in her view, because the event took place in Northland, the attendees were all Māori who are used to being treated like this, and there were gang members present.

"We note that Police have undertaken very similar operations where the occupants of vehicles that were targeted were not Māori... We do not consider that the event attendees were racially targeted. They were targeted because they were believed to be possible gang members or associates, not because they were Māori," the report concluded.

In all, the IPCA found the woman was unlawfully detained, the photographs taken were in breach of Principles 1 and 3 of the Privacy Act, and the Land Transport Act was used as a pretext for intelligence gathering, which was a disingenuous use of the section.

Police accepted the findings that they breached the law, saying they had found aspects to learn from, and the intent of the staff was positive.

Police had destroyed the photos and apologised to the woman, they said in a statement.

They "strongly refuted" the allegation Ms Z was racially targeted.

"Police... maintain those attending the event were targeted because it was believed most of those attending were likely gang members or associates."

Northland District Commander Superintendent Tony Hill said an internal review on the legality of the photos came to the same conclusion - that these "did not comply" with the Privacy Act or Land Transport Act.

"We have reviewed this event and have identified a number of learnings," Hill said.

"We have provided additional communication and advice to our staff to ensure they understand their obligations under these Acts when carrying out checkpoint operations.

"I would also like to acknowledge however that the intent of the staff was positive and their aim was to gather intelligence around members of organised crime groups.

"In future operations our staff will have clearer guidelines to ensure that all actions are lawfully executed under the Land Transport Act."

rnz.co.nz