28 June 2021
IR-01-21-13438
Andrew Geddis
[FYI request #15277 email]
Kia ora Andrew,
Thank you for your Of icial Information Act 1982 (OIA) request dated 25 April 2021.
You have requested the following information:
"On April 25, stuff.co.nz published an article ""A judge has ruled that police
'formal warnings' are il egal and akin to a conviction without trial""
(https://www.stuff.co.nz/national/crime/124930038/a-judge-has-ruled-that-
police-formal-warnings-are-illegal-and-akin-to-a-conviction-without-trial). That
article includes a quote attributed to the NZ Police: “In the interim, staff have
been provided with information concerning the proper approach to formal
written warnings.”
I request a copy of the information referred to in this article, being all
information and advice provided to police staff regarding the issuing of formal
written warnings following the decision in S v Commissioner of Police [2021]
NZHC 743."
I have considered your request and provide the following response.
Background and information
The Formal Warning and its predecessor, Pre-Charge Warning (PCW) are
alternatives to prosecution for offenders who have committed offences with a
maximum penalty of not more than six months’ imprisonment. It involves the use
of Police discretion not to prosecute even though there is sufficient evidence to
do so.
Formal Warnings are one of a number of tools Police can draw upon to resolve
the incidents Police respond to. Police replaced the Pre-Charge Warning (PCW)
with the Formal Warning on 1 May 2020.
The purpose of the Formal Warning is to resolve offences where Police
intervention is required but prosecuting an individual through the Court process is
not in the public interest. The ‘public interest test’ is set out in the Solicitor
General’s Prosecution Guidelines. It is based on the premise that there wil be
circumstances in which, although the evidence is sufficient to provide a
reasonable prospect of conviction prosecution is not required in the public
interest due to a range of factors which may include (amongst other factors)
offence seriousness, context of offence, prospect of reoffending, victim
considerations, and the cost of prosecution to the public.
Formal Warnings are intended to be an effective mechanism for holding an
individual to account and deterring them, by showing them that the offence is
being treated seriously and recording the warning as part of their criminal history.
Police Instructions chapter ‘Formal Warnings’ was published on 1 May 2020 and is
provided as Appendix 1. This policy is for Formal Warnings to be applied in
appropriate situations with offences with a maximum penalty of not more than six
months’ imprisonment. There have been no changes since the Police Instructions
were published on 1 May 2020.
All information and advice provided to police staff regarding the issuing of
formal written warnings following the decision in S v Commissioner of Police
[2021] NZHC 743
Following the decision, police staff were notified that an admission of the offending by
the offender must be recorded before a Formal Warning can be issued. Staff were
also advised, in the same communication, that Police were currently considering
whether to appeal the recent High Court ruling on the case - S v Commissioner of
Police [2021] NZHC 743. This communication occurred as an internal bulletin board
message and is at ached as Appendix 2.
Police has initiated work to ensure the policy remains appropriate and its operational
staff are consistently delivering Formal Warnings according to the policy. Police’s
Reframe strategy, initiated in early 2020 wil also provide an opportunity to reflect on
the formal warnings policy, and to set this in the context of a wider programme to
establish an end-to-end resolutions framework.
You have the right, under section 28(3) of the OIA, to ask the Ombudsman to review
my decision if you are not satisfied with the way I have responded to your request.
Ngā mihi,
Michael McLean
Director
Māori, Pacific, and Ethnic Service
