A new police investigation into former National MP Todd Barclay has again found insufficient evidence to press charges, in the wake of a Newsroom investigation which led to his departure from Parliament.
Police have defended their handling of the original investigation, arguing “speculation, hearsay and third party information” was not enough to move ahead with a prosecution.
In June, Newsroom revealed Barclay’s clandestine taping of former staffer Glenys Dickson led to a secret payment from former Prime Minister John Key’s leader’s budget.
The investigation also revealed former Prime Minister Bill English knew about the recording and the payment, and that Barclay had told him of the recording and offered to play it to him.
The day after the Newsroom story broke, Barclay announced he would not seek re-election in his Clutha-Southland seat.
Police later announced they were reopening the investigation into Barclay, having originally concluded there was insufficient evidence for a prosecution.
In a written statement released on Monday, NZ Police assistant commissioner of investigations Richard Chambers said there was “no change to the outcome of the original investigation”.
Chambers said police had assessed new information that came into the public domain, spoken to some people who had already been interviewed, and spoke to “new individuals it was thought may have relevant information”.
Police had attempted to interview Barclay, but he had again refused to speak with them.
The decision to uphold the original decision came after “a thorough review of all information available to us, including legal advice both internal and from Crown Law, plus consideration of the Solicitor General’s prosecution guidelines”, Chambers said.
Police again did not seek or execute search warrants as they did not believe there was enough evidence to justify doing so.
They also concluded there was nothing to back up suggestions that key witnesses had been coerced in relation to the original investigation.
Pushing back against public criticism of the original investigation, Chambers said police had been cleared by the Independent Police Conduct Authority, which found the investigation had followed proper process.
“While we recognise the strong interest in this matter, the foundation of any decision to seek warrants or to prosecute is always the evidence available to us,” Chambers said.
“Speculation, hearsay and third party information does not in itself constitute such evidence.”
Legal avenues might be exhausted but that doesn’t stop moral or political judgment over the Todd Barclay scandal.
University of Otago law professor Andrew Geddis says the police reinvestigation largely looked back at information they already knew.
A prosecution relied on a “new smoking gun”.
“From that point of view it doesn’t really surprise me that after having looked at the same stuff they’ve come to the same conclusion.
“To bring a charge here you were really going to have to have someone who basically directly witnessed some unlawful taping taking place.
“And from what we heard from third-party sources and so on the only person that could be was Mr Barclay, and if he wasn’t speaking, well, what can the police do?”
Geddis says Dickson could complain to the Privacy Commissioner about a breach of privacy, but that could hit the same stumbling block – that former Clutha-Southland MP Barclay wouldn’t respond.
To be clear, the police said there wasn’t enough evidence to bring charges.
Geddis adds: “Which is a different thing to saying that no hidden taping occurred.”
The public might question why, if Barclay had nothing to hide, he didn’t speak to police, Geddis says.
Police can get orders that require people to testify in limited matters like financial crimes.
But “no one has to say anything to the police at all”, Geddis says – a basic right for all New Zealanders.
“Now, of course, Todd Barclay’s position as an elected Member of Parliament made it morally very dubious when he refused to take part in the first police investigation or indeed the subsequent one.
“And I think he can be judged in a political sense or a moral sense, but in a legal sense no one has to say anything to the police and furthermore no implications can be drawn legally from the refusal to take part in a police interview.”
Geddis says search warrants are “troubling” as they largely rely on police discretion on whether there’s enough evidence to justify getting one.
Police have sought search warrants in other high-profile cases.
Media offices were searched after the so-called ‘teapot tapes’ conversation between then Prime Minister John Key and ACT candidate John Banks. And the home of investigative journalist Nicky Hager was raided by police – in a search later ruled illegal – for the identity of ‘Rawshark’, a source of hacked emails by blogger Cameron Slater, the basis for Hager’s book Dirty Politics.
Geddis says when police apply for search warrants in some cases and then don’t apply for a warrant in another case, people might question if the same standard is being applied.
“I guess we have to take the police’s word for it here that all the accusations they had of wrongdoing were essentially hearsay, they were second-hand, they’d heard from another source that something had happened.”
Hearsay evidence doesn’t usually lead to search warrants, Geddis says. That’s because there’s a reliance on people accurately recalling their conversations and it’s not clear what originally happened.
“You’d have to think that the police will have treated this re-investigation very carefully. They’ll know it’s open to a lot of scrutiny and if they say there wasn’t enough evidence, unfortunately we’re left to take their word for it.”
How the Barclay scandal affected the general election is unclear. Certainly, National candidate Hamish Walker romped home in Clutha-Southland with a majority of almost 13,000. Geddis says National leader English probably took a hit to his image as someone who is forthright and honest.
As for Barclay, Geddis notes he’s reversed an old 19th Century tactic by fleeing from the antipodes to England in the hope of escaping a dark past.
Barclay has moved to London since leaving Parliament.
Dickson was not immediately available for comment to Newsroom.