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Police search warrants against the media

By Steven | March 3, 2009

In light of the police’s impending execution of a search warrant on the offices of the Herald on Sunday over Holmes’s (apparently) recorded interview with Tony Veitch, I thought y’all might be interested in the Court of Appeal’s guidelines for the issue of such warrants (from TVNZ v Attorney-General [1995] 2 NZLR 641):

One guideline, in a case where there is no suggestion that the media organisation has committed any offence and it has done no more than record events which may include the commission of offences by others, is that the intrusive procedure of a search warrant should not be used for trivial or truly minor cases. [The Court felt that protesters overcoming naval personnel to replace the flag at Waitangi treaty grounds was sufficiently serious, particularly as they were “calculated insults to the constitution of New Zealand”].

A second guideline is that, as far as practicable, a warrant should not be granted or executed so as to impair the public dissemination of news… in the present case the company appears to have already broadcast what it wanted from the tapes in its news programmes.

A third guideline is that only in exceptional circumstances where it is truly essential in the interests of justice should a warrant be granted or executed if there is a substantial risk that it will result in the “drying-up” of confidential sources of information for the media. In this case again there appears to be no risk of that kind. The tapes simply recorded public events.

A fourth guideline is that a warrant should be executed considerately and so as to cause the least practicable disruption to the business of the media organisation. In this instance, had the appellant so wished it might have been possible for the police to view the tapes at the studio and to take away only those found to be of significant evidential value…

A fifth guideline for the grant of a warrant relates to the relative importance of the tapes for the purposes of a prosecution. [A warrant may be issued] “when it is likely that the film will have a direct and important place in the determination of the issues before the Court.” It must be remembered that the evidential value of tapes may because of their accuracy exceed that of accounts by eye witnesses. In a confused situation involving the actions of many members of a crowd the …  recording may be fairer to all concerned than eyewitness evidence. While the availability of other evidence is a factor for consideration, the superior reliability of a film will often outweigh it.

Can we be forgiven for wondering how helpful Holmes’s tape is likely be, especially given how long the police seem to have waited to make this application. Besides, would Veitch and Holmes have really allowed anything incriminating to be on that tape?

Topics: Journalism and criminal law, Search warrants | 41 Comments »

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