Who prosecutes the police?

Criminal cases involving police officers, government employees, or soldiers, attract attention.

For a start, those charged with applying the law must consider potential conflicts of interest in difficult circumstances if presented with a case where they must prosecute their own. New Zealand is a small country and in many districts, lawyers, police, and justice employees know one another.

Police officers must be accorded the same rights to a fair trial as any other citizen of New Zealand, human rights’ barrister, Dr Tony Ellis said.

In the case of Invercargill police officer Constable Ben McLean – who allegedly shot his wife and a man she was with on Anzac Day – the Southern police district commander, Superintendent Paul Basham, said yesterday that there was a need for impartiality.

Two senior CIB officers, a detective inspector from Dunedin and a Canterbury detective superintendent, were overseeing the inquiry. Police had also ‘‘self-referred’’ the case to the Independent Police Conduct Authority as per legislation, he said.

Speaking generally, Ellis said a police officer charged with a crime could expect the same rights as anyone else.

Prosecutions are usually managed by police, or the Crown if the offence is at the serious end of the criminal spectrum, such as rape, murder, or aggravated burglary.

Most criminal prosecutions are handled by police prosecutors around the country.

If an officer is charged, police would normally refer the prosecution to the Crown.

Under the attorney-general’s prosecution guidelines, the Policing Act is subject to consent of the attorney-general in certain statutory offences. Any charging document alleging criminal offence by a police officer in New Zealand requires consent.

Ellis said such cases would not be prosecuted by police. ‘‘The police are not going to prosecute. The Crown solicitor is going to do that, or Crown Law, because there’s obviously a potential conflict.

‘‘They may well get an experienced QC [Queen’s Counsel] from [a city] to do it who is not familiar with the area.

‘‘It’s not just the officer charged. There will be other officers involved. You want somebody who is not from the area. The file would be sent to Crown Law and the solicitors.’’

Under the solicitor-general’s prosecution guidelines, the principles of justice apply – there must be sufficient evidence to warrant a prosecution and there must be a public interest in the application of justice.

Here, in the public interest does not mean crimes, or cases, potentially of interest to the public. Instead, it means ‘‘the public interest requires prosecution where there has been a contravention of the criminal law’’.

The guidelines say most Crown prosecutions are carried out by Crown solicitors, lawyers around the country who have a warrant to handle such cases.

Ellis said a Crown solicitor would probably be appointed from a different police district to one where an officer was charged – as the local Crown solicitor’s office will regularly work with police and enforcement agencies.

In a serious case, a Queen’s Counsel may be appointed alongside a Crown solicitor, he said.