JOHN DUSTOW AGAINST RADIO NEW ZEALAND
Case Number: 3258
Council Meeting: MAY 2022
Decision: Not Upheld
Balance, Lack Of
Comment and Fact
Overview John Dustow complains about an article Licence to Kill: The startling truth about New Zealand’s fatal police shootings published by RNZ on 21 March 2022. The complaint largely falls to be decided under Media Council Principle 1: Accuracy, Fairness and Balance and to some extent Principle 4: Comment and Fact.
 The article was the first in an investigative series on police shootings. It was wide ranging and aimed to query who the New Zealand police are shooting and why. It relied heavily on a series of statistics such as comparisons between countries and whether the shooting involved a person with mental health issues that had required treatment. Relevant to this complaint were statistics regarding whether the person was holding a weapon (and type) when shot and the ethnicity of offenders.
 Aspects of the story relevant to the complaint include comments from a lawyer specialising in firearms reporting his opinion that “… the high rates of police shootings were the result of poor weapons training, a shoot-to-kill policy and a police culture which puts risk taking ahead of de-escalation”. This is followed by the statement “But Police Commissioner Andrew Coster said New Zealand’s social problems were a major factor” and a quote from the Commissioner outlining his view of the New Zealand context.
 The story also states that six of the 35 people police killed were not holding a weapon at the moment they were shot.
 It also addressed the ethnicity of the people killed stating that the majority of those shot by police are Māori, “reflecting the fact that police use of all types of force is disproportionately directed at young, Māori men.”
 John Dustow’s initial complaint, supported by further elaboration in his complaint to the Media Council and his final response, is that the article gives an incorrect inference about Police officers – that they are “ … cowboys looking for a reason to shoot people”.
 In part he considers this inference flows from the article suggesting that NZ Police have special powers or a ‘licence’ to kill or even have powers to kill indiscriminately. This is inflammatory and inaccurate as the power to use lethal force in some circumstances arises only from provisions of the Crimes Act 1962 dealing with self-defence and those provisions apply to all people.
 The inference was further supported by the headline of the article “Licence to Kill” and unchallenged comments in the reporting including the claim by a lawyer that Police have a policy of “shoot to kill”. This statement is factually incorrect, and he rejects RNZ’s assertion that these comments were immediately addressed in the report by reference to comments made by the Police Commissioner.
 He also has a number of particular complaints regarding the statistics used in the article, which he maintains were inaccurate and used to support this wrong inference. The article implies that six of the 35 people shot by police were unarmed. He considers the correct figure is two, with the balance (four) representing those who lost a weapon while being shot.
 He also considers that the article inaccurately suggests that Māori are disproportionately shot as there was insufficient data drawn on to justify such a conclusion and there was no context given as to how many Māori presented weapons to police in comparison to others. Overall, the article suggests Māori are shot disproportionately because of their race, and not the circumstances facing the police officer at the time of the shooting.
 Finally, he considers that some statistics were not used, which should have been used. In particular, he notes that there was no mention of the number of times a year when weapons are presented against the police and the matter dealt with without recourse to police using a firearm.
 In its initial response RNZ disagreed with the ‘gist’ of the complaint and did not uphold it. It considers that the term ‘licence to kill’, while popularised by a James Bond movie has long been in existence and simply means permission to kill. This is allowed for in New Zealand given the powers that the police have.
 It notes that the article was one of a series. While the complainant queries why various points were not addressed, the clear focus of the series was on who the police are shooting and whether they are justified to do so. It was not necessary for the article to deal with points noted by the complainant, such as the absence of data regarding how many times a member of police is faced with a weapon per capita.
 It stated that the comments of the lawyer regarding a policy of ‘shoot to kill’ were immediately followed by contradictory comments from the Police Commissioner.
 With respect to the complaint regarding ethnicity RNZ notes that the comments stating the majority of those shot are Māori were made in the context of other statistics regarding Māori in the criminal justice system. These figures clearly indicate the disproportionate use of force against young, Māori men.
 In its formal response to the Media Council RNZ reiterated that the New Zealand police have “permission to kill”. This was explicitly accepted by the Police Commissioner in the second of the series of articles (“Police who killed were given evidence in advance” published on 23 March 2022) where he stated “We give them the power to use lethal force, if required, to achieve that outcome …” and that this was different from those who use force in self-defence. RNZ also pointed out that there are more liberal provisions of the Crimes Act beyond those dealing with self-defence including one that deals with the use of force in the context of, among other things, executing an arrest.
 Regarding the number of ‘unarmed’ people who were shot RNZ states that it has accurately summarised the data. It considers the alternative, reporting that the police continued shooting as, or after, they dropped their weapons would be more damaging.
 The complainant has listed several Media Council principles he considers have been breached, however, in our view the complaint largely falls to be decided under Media Council Principle 1: Accuracy, Fairness and Balance, which states:
Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.
Exceptions may apply for long-running issues where every side of an issue or argument cannot reasonably be repeated on every occasion and in reportage of proceedings where balance is to be judged on a number of stories, rather than a single report.
 Nonetheless, we consider that the quote from a lawyer regarding a policy of ‘shoot to kill’ also engages Principle 4 and we deal with them together. Principle: Comment and Fact, states:
A clear distinction should be drawn between factual information and comment or opinion. An article that is essentially comment or opinion should be clearly presented as such. Material facts on which an opinion is based should be accurate.
The lawyer’s quote clearly represented an opinion and must be read as a whole. In the lawyer’s opinion “… the high rates of police shootings were the result of poor weapons training, a shoot-to-kill policy and a police culture which puts risk taking ahead of de-escalation”. This view was followed by a statement from the Commissioner who points to New Zealand’s social problems as a major factor in the number of people killed. Given its nature as opinion we do not think that RNZ should have edited the quote or refrained from printing it.
 The complainant considers that RNZ is wrong to say that there was an immediate contradiction of the existence of a ‘shoot to kill’ policy by the Commissioner in the article. However, we do not think the Commissioner’s comments needed to. The lawyer stated a list of factors that he considered led to the high rate of police shooting. The Commissioner’s view was that social problems are a major factor. As this sentence followed immediately after the lawyer’s quote it can be seen as an implicit rejection of the lawyer’s views. It was not necessary for ‘shoot to kill’ to be separated out and given special treatment, just as poor weapons training and police culture were not explicitly addressed.
 We also consider it cannot be said that the opinion is based on inaccurate material facts. In his complaint to the Media Council the complaint refers to an interview that was conducted with the Commissioner several days before the article was released, which apparently records an unequivocal statement that the NZ Police do not have a ‘shoot to kill’ policy. We are unable to take this into account as the content of that interview is not before us. Nonetheless, we note that the third article in the series “Shooting to wound ‘something from the movies’ – Coster” (RNZ, 1 April 2022) addresses this issue in detail and contains further views from both the lawyer quoted and the Commissioner (including a statement by the Commissioner that “this idea of shoot to wound is really something from the movies.”) This suggests that whether the police have a policy of ‘shoot to kill’ may be a matter of interpretation or disagreement, and the lawyer quoted was not necessarily basing his opinion on inaccurate facts. We also consider that this later article also indicates that balance on this point has been achieved over the series.
 In relation to the figures used for the number of people shot while unarmed, we have some sympathy for the complainant. On reading the sub-stories about those who were shot (and in particular the summary information provided as part of each link) it does appear that only two of the 35 were unarmed at the time they were shot. Conversely, the article itself simply says “records show that six of the 35 people police killed were not holding a weapon at the moment they were shot.” Ultimately, this comes down to how the statistics are interpreted. Although we consider that RNZ could have been much clearer about how they derived these numbers we do not think they are inaccurate, misleading or lead to a lack of balance.
 The complainant suggests that the article inaccurately suggests that Māori are disproportionately shot and that there was insufficient data to justify such a conclusion. We disagree. The largest number of people shot during the period were Māori. Given Māori are a minority proportion of the population it seems clear they are being disproportionately shot. It was also appropriate for the article to also make the point that the trend in relation to those shot correlates to trends in relation to the use of force generally.
 The complainant considers that the headline “Licence to Kill” suggests that NZ Police have special powers (a ‘licence’ to kill). The Media Council is in no position to determine under which parts of the Crimes Act a police officer who has shot someone might claim a defence. Indeed, it is likely that would depend on the circumstances of the case. However, the police do shoot people and are only rarely prosecuted for doing so. This suggests that they have some legal authority to do so. This is a point that was accepted by the Commissioner in the second article of the series, where he noted “We give them the power to use lethal force, if required” (“Police who killed were given evidence in advance” (RNZ, 23 March 2022). In this context we do not consider it was inappropriate for the headline to adopt the phrase ‘licence to kill’. This is a phrase that has entered popular culture and while it is sensationalist, we do not think it was inflammatory or that it was inappropriate to use it to attract readers’ attention.
 Overall, we do not agree that the article was inaccurate, unfair or unbalanced. A large portion of the complaint’s argument came down to a disagreement about the interpretation of the statistics or for a desire for different statistics to be used. However, we accept that RNZ was entitled to focus its series, and the statistics used, on the question of who the police are shooting and to query whether they are justified in doing do. It was not unfair or unbalanced for RNZ refrain from considering broader questions, such as of how the police deal with those presenting weapons generally.
Decision: The complaint is not upheld.
Media Council members considering the complaint were Hon Raynor Asher, Rosemary Barraclough, Craig Cooper, Ben France-Hudson, Richard Pamatatau, Hank Schouten, Marie Shroff, Alison Thom, Reina Vaai and Tim Watkin.