McLean and Radio New Zealand Ltd - 2009-064
- Joanne Morris (Chair)
- Mary Anne Shanahan
- Tapu Misa
- Paul France
- Ian McLean
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Checkpoint – live telephone interview with Napier resident watching police trying to deal with an armed man barricaded inside a house and who had been shooting at police – host questioned resident about what he could see and hear and what the police were doing – allegedly in breach of law and order standard
Standard 2 (law and order) – information provided by interviewee would not have assisted the armed man – no evidence that the information disclosed affected the maintenance of law and order – not upheld
This headnote does not form part of the decision.
 During a segment on Checkpoint, broadcast on Radio New Zealand National at 5.24pm on 8 May 2009, the host discussed an armed man in Napier who had barricaded himself inside a house after shooting three policemen, one of whom had died.
 The host conducted a live telephone interview with a resident who had chosen to stay within the police cordon rather than leaving his home. The resident stated that he could see the armed man’s house through his backyard and there was a large number of police and police vehicles surrounding it. He went on to explain that he had heard gunfire a few minutes earlier and that he had seen police being shot at and returning fire from behind their armoured vehicles.
 Over the next five minutes, the host asked the resident a number of questions about what the police were doing and what he could see and hear including:
- "Can you see that they're trying to move closer and closer to the property?"
- "Have a look. What can you see?"
- "So they've got out of the armoured vehicles in the driveway?"
- "Can you see how many there are, how many of these armed people are there?"
- "How close are they to the house now? Are they going down that driveway?"
- "Can you tell us anything more about what’s going on?"
 The resident answered the host’s questions detailing what he could see and hear including police movements around the armed man’s house. His comments included the following:
- "...I can see the two LAV’s parked outside the front of the house. Um, it’s getting dark now, but they're, they’re all sort of hiding behind it and about, ah, 5 minutes ago there was a whole heap of gunfire going off...there were some shots fired from the house, 'cause it’s getting dark now we can see the flash...and then, um, they returned fire with the guns on the tanks that they’re using..."
- "They parked [an LAV] right in the driveway, and then they, um, they've just slowly moved the other one down...Oh, hang on something's happening...I think they've gone in somewhere now...they're sort of, um, going between the two vehicles to get around into the house."
- "Yesterday we could hear [the police] over the speaker talking to him, um, but there's none of that today."
- "...there's some lights coming on now...um, I just saw a couple of torch lights going by the LAV’s, there’s still random yelling going on...no more gun shots, not since the last lot 10 minutes ago now."
- "I can just make out a couple of guys walking up the hill - down, they're coming down the hill in the middle of the road."
 Towards the end of the interview the host stated, "We do have to be a little careful because he could be listening to the radio".
 The interview concluded with the host thanking the man and saying the station would get back in contact with him shortly.
 Ian McLean made a formal complaint to Radio New Zealand Ltd (RNZ), the broadcaster, alleging that the item had breached Standard 2 (law and order). The complainant argued that broadcasting details of the police deployment and their actions could have assisted the armed man to attack police, as he might have been listening.
 The complainant considered that the broadcast had recklessly increased the risk of police getting harmed and that the disclosure of police positions and movements put them in greater danger.
 RNZ assessed the complaint under Standard 2 of the Radio Code of Broadcasting Practice. It provides:
Standard 2 Law and Order
Broadcasters should observe standards consistent with the maintenance of law and order.
Broadcaster's Response to the Complainant
 RNZ stated that the interview was " a mixture of a description of events that had just happened prior to the interview, events over the preceding day or so, and in part of the interview, live developments".
 The broadcaster said that, after reviewing the whole interview, part of the interview "fell outside our guidelines which require sensitive handling of reporting in these types of situations". It stated that it regretted the breach of its own editorial policies and that the breach had been raised with the presenter and the programme's producer and "dealt with".
 Turning to assess Standard 2, RNZ said that the Authority had previously stated that a broadcast would "have to have incited, encouraged, glamorised or condoned some form of criminal activity" before a breach could be found. It argued that this "clearly did not occur on this occasion" and it declined to uphold the law and order complaint.
Referral to the Authority
 Dissatisfied with RNZ's response, Mr McLean referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant noted RNZ's statement that in order for a broadcast to breach Standard 2 it would "have to have incited, encouraged, glamorised or condoned some form of criminal activity". He stated that if the broadcaster's interpretation of the law and order threshold was wrong, then RNZ should be found to have breached the standard.
 Alternatively, Mr McLean argued that if RNZ's interpretation was correct, the threshold for a breach of the law and order standard should be extended to cover "broadcasts which significantly increase the risk to lives of police or emergency workers" and "broadcasts which directly facilitate the commission of a serious crime".
 The complainant argued that the broadcast "directly facilitated the commission of a most serious crime (attempted murder)", and reiterated that it had put the lives of police at greater risk.
Broadcaster’s Response to the Authority
 RNZ argued that, "At no point did the interviewee provide information of a predictive nature which would have assisted the fugitive beyond that which was already apparent at the scene". It maintained that Standard 2 had not been breached.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 At the outset, the Authority acknowledges that this was a novel situation which it has not had to deal with before.
 The Authority has stated on many occasions (e.g. Decision No. 2005-133) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. However, it considers that the standard also exists to prevent broadcasts that threaten public order or compromise the safety of those people whose duty it is to maintain law and order, such as the police.
 In the Authority's view, Standard 2 does apply in this case, as the broadcast had the potential to aid criminal actions and affect the safety of the police officers trying to deal with an armed offender. For that reason, the Authority considers that the questions asked by the host were ill-considered and irresponsible. However, while it is of the view that this is a borderline case, the Authority finds that the information provided by the interviewee was not sufficiently detailed or specific to have helped the offender, if he had been listening.
 The Authority notes that if there was any evidence that the information disclosed in the broadcast did in fact increase the risk to police or that the armed man used the information to assist his situation, it would have had no hesitation in upholding a breach of Standard 2. That is not the case, however, and therefore the Authority declines to uphold the law and order complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
19 August 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Ian McLean's formal complaint – 11 May 2009
2. RNZ's response to the formal complaint – 15 May 2009
3. Mr McLean's referral to the Authority – 5 June 2009
4. RNZ's response to the Authority – 7 July 2009