Police set to revoke formal warnings after 70,000 issued

Police have issued tens of thousands of potentially illegal formal warnings, and will soon be contacting those who should never have been issued one.
A High Court ruling in 2021 found a formal warning issued to a teacher in 2019, who was accused of grooming a 15-year-old student, was illegal. 
The court recognised police have a common law power to issue warnings for offending that is unequivocally admitted. However, there is no power to issue a formal warning where the alleged offending is denied.
Police considered appealing the ruling but decided against it. Internal policy was then introduced, making it clear that in order for a formal warning to be issued a clear admission of guilt was required.
At the time of the teacher’s formal warning, police had issued approximately 20,000 formal warnings. However since then the number of pre-charge, formal, and verbal warnings has ballooned to 92,000.
A recent stocktake revealed a “high percentage” of warnings were non-compliant, but noted this could be due to poor record-keeping.
In a briefing to Police Minister Mark Mitchell, police confirmed they had begun a two-stage process of reviewing records to see which ones were legitimate.
First, districts would receive a list of possible non-compliant high-impact formal warnings – issued for offences with a penalty of at least 14 years in prison – and try to bring them up to a compliant standard by adding missing documentation that may have been overlooked “due to other operational demands”.
That work was due to be finalised by June this year, but it remains ongoing due to resourcing constraints.
“Remediation activity” would then begin for any warnings that remained non-compliant.
“An empathetic, professional, and culturally sensitive approach will be taken to remediation, ensuring alignment with relevant Police specialist policy (i.e., child protection, family harm, sexual violence). For example, ensuring where a victim is linked, that there are appropriate supports in place, and where remediation involves Māori or other ethnic communities, considering involving our liaison officers or utilising a restorative justice setting such as a marae or other safe place when engaging with those impacted,” the briefing said.
University of Otago law professor Andrew Geddis said police had clearly been issuing formal warnings with no regard to the policy that came into place in 2021.  
“It appears that the police are now of the view that this has created such a huge problem that they’re only going to pay attention to the most serious warnings given and essentially leave the rest of them in place, even though they may be unlawfully given, and just sort of hope no one notices or challenges them.” 
Police admit rectifying non-compliant warnings for lower-level offences would be too hard. 
“Police recognises that formal warnings for lower penalty offences may also have had consequences for any person subsequently vetted. However, due to the volume of formal warnings involved, a pragmatic approach is required. Triaging will support Police to commence remediation in a sustainable way, while minimising the impact on our districts’ frontline and investigation resources,” the briefing said. 
Geddis said the issue of formal warnings usually accompanied complex situations.  
“For example in a lot of sexual offending cases where you’ve got someone who has gone to the police with an allegation, but then doesn’t want to give evidence in court, I suspect the police have used the formal warning as a way to try to get some measure of perceived justice in the case, to show the complainant, ‘Yes we’ve taken you seriously’. 
“Now of course the problem is, if the person hasn’t actually admitted guilt, then they’ve got a formal warning for serious sexual offending on their record, without having the opportunity to challenge in court … the flipside is, of course, we know that going to court for this kind of offending is just horrible for victims, and I suspect that’s where a lot of these problems have probably arisen.” 
He said the legal consequences for people issued a non-compliant formal warning would likely depend on the impact it had on their life, and unwinding the mess would be difficult. 
“The only situation where someone could probably go to try to get some sort of compensation would be if the police have unlawfully issued one of these formal warnings, someone has then sought a police vet because they’ve gone for a job or something and been turned down because the formal warning was disclosed. Well, in that situation they suffered a harm as a result of the police’s unlawful actions, and they could see compensation…
“Police are going to have to go back to some people who probably are victims of offending and who feel the only measure of justice they’ve really got is that person who offended against them got one of these formal warnings, and the police are gonna have to say, ‘You know what, I’m sorry that formal warning’s been rescinded’.”
Amnesty International NZ campaigns director Lisa Woods described the news as a “shocking discovery”. 
“Every government agency must uphold the law, but I think it’s especially important when it comes to the police, because the impacts of wrongdoing from police can be particularly devastating. So this is really appalling.” 
Amnesty is part of coalition called Aotearoa Justice Watch, which encourages people to anonymously submit their experiences with the justice system.  
The submissions are not verified.  
Woods said the first report, released earlier this month, revealed “really alarming allegations of abuse and discrimination at the hands of police”. 
Another example in recent history was police unlawfully photographing young people, and then failing to implement some of the key recommendations from a resulting inquiry. 
“So taking this all together, what we’ve seen is a really clear pattern of serious issues concerning police power, and there seems to be a significant problem with the processes police have in place to ensure they are acting within the law, which is obviously a significant problem. It shouldn’t be happening at all.” 
In response to further questions from Newsroom, an emailed reply from an unnamed police spokesperson said a review of findings from the phase one work would be made public, and this would inform whether further training for police or system change was required.
As for the leap in warnings issued from 2019 to 2023, the spokesperson said the Covid-19 lockdowns had an impact.
“During the various Covid lockdowns, Police carefully considered the public interest test which forms part of the formal warning criteria, as part of deciding whether to warn or prosecute someone for an offence.”