The State’s Monopoly on Force is a Bargain, not a Blank Cheque

New Zealanders are routinely told not to take the law into their own hands.  That is generally good advice. Private justice has no rules of evidence, no appeal process and a disturbing tendency to involve cable ties.  But the warning rests upon a bargain:

We surrender most of our right to enforce the law because the state promises to enforce it for us.  That bargain is almost explicit in the Policing Act. Police exist to keep the peace, maintain public safety, enforce the law and prevent crime. Those services are supposed to be delivered independently, impartially and with respect for human rights.  The public is therefore expected to withdraw.

• Do not chase the offender.

• Do not punish the burglar.

• Do not conduct your own arrest.

• Do not use more force than a court may later decide was reasonable.

• Call the Police.

Fine.

But what happens when the Police do not come, do not investigate—or decide that the suspected offender has a future worth protecting?

A Promising Career

An internal Police review, disclosed by RNZ this week, found serious failings in the handling of a historical sexual-offending complaint involving a young sportsman.  The complainant was 15 at the time of the alleged conduct. The review found that the original investigation was poor, that she was neither listened to nor believed, and that the sportsman’s prospective professional career had been prioritised over her and the alleged offending against her.

The officer originally recommended no prosecution. According to the subsequent review, important inquiries were not completed, basic facts were not checked and the sportsman was spoken to in front of his parents rather than treated conventionally as an adult suspect. The case has now been reopened.

These remain allegations. There has been no conviction, and the sportsman’s identity is protected by an injunction. But the criticism of the investigation does not come from a commentator, political opponent or disgruntled member of the public. It comes from Police’s own review.  Apparently, some suspects are approached as threats to public safety.  Others are approached as promising young men whose careers must be handled carefully.

The Farmers and the Fingertip

Now consider Bill and Shaun Burr.

In October 2020, two teenagers entered Bill Burr’s Piopio home in the early hours intending to steal his vehicle. During the confrontation, the tip of the male intruder’s little finger was cut off.  Police charged the father and son with serious violence offences, including wounding and maiming. The Crown alleged revenge and excessive violence. The defence maintained that the intruder remained armed with a knife and continued to present a threat while being detained.

The Burrs were not quietly warned. Their futures were not treated as precious things requiring delicate institutional protection. They were prosecuted through an eight-day High Court trial.  A jury acquitted both men on every violence charge.

That acquittal does not automatically prove that Police acted improperly by charging them. Prosecutors are required to consider whether sufficient evidence exists and whether prosecution is required in the public interest. Where self-defence is clearly available, they must also consider whether it can be disproved beyond reasonable doubt.

But an acquittal does not return the years spent under accusation.  It does not refund the legal expense, restore the sleep or erase the prospect of imprisonment.  The process is not merely the road to punishment. Often, the process is the punishment.

The Law Permits Self-Defence . . . Eventually

Section 48 of the Crimes Act appears admirably straightforward. A person may use such force as they reasonably believe is necessary to defend themselves or another person in the circumstances as they understand them.

The difficulty is that self-defence occurs in seconds, while its reasonableness may be examined for years.

The frightened householder must decide immediately:

• Is the intruder armed?

• Is he retreating or repositioning?

• Can I safely stop?

• Will he attack my family?

• How much force is enough?

• How much is too much?

Later, everyone else receives better lighting, slow-motion footage, expert evidence and several uninterrupted months to think about it.  The defendant receives hindsight.

When the Institution Protects Itself

The problem becomes darker when the person seeking protection is complaining about Police.  In 2025, the Independent Police Conduct Authority reported serious failings in the response of senior Police leaders to allegations involving then-Deputy Commissioner Jevon McSkimming.

The Authority found that senior personnel largely accepted McSkimming’s account without proper scrutiny. Recommendations to refer potential criminal and disciplinary concerns for investigation were not acted upon.  Instead, Police investigated the complainant under the Harmful Digital Communications Act and prosecuted her.

The IPCA also found that then-Commissioner Andrew Coster attempted to influence the nature, extent and timing of the eventual investigation in circumstances perceived by some Police staff as intended to protect McSkimming’s prospects of becoming Commissioner.

The IPCA did not determine whether the complainant’s substantive allegations against McSkimming were true. A later investigation concluded that the evidential test for prosecuting those particular allegations was not met.

That distinction matters.

It does not, however, repair the institutional picture: allegations against a senior officer languished, while the woman making them became the accused.  Police Commissioner Richard Chambers later described the conduct of former senior leaders as inexcusable, saying that safeguards had been bypassed and the ambitions of a senior officer placed above the interests of a vulnerable woman.

This is the most dangerous form of unequal justice.  Not a written conspiracy. Not an order announcing that important people receive better treatment.  Just dozens of discretionary decisions, each small enough to defend individually, all leaning in the same direction.

The Monopoly and the Warranty

The state claims a near-monopoly on legitimate force because organised public justice is supposed to be safer and fairer than private retaliation.  That claim is reasonable.

But a monopoly comes with obligations.  The state cannot demand passivity from citizens while offering protection selectively. It cannot tell victims to trust the process while quietly modifying the process according to the status, profession or institutional usefulness of the person accused.Nor can the answer be widespread vigilantism. Steven Gardiner demonstrated why.

After becoming frustrated with Police progress following an assault, Gardiner produced his own purported arrest warrant, gathered several associates and confronted the alleged attacker at his home. The confrontation became violent. Gardiner was convicted of common assault and wilful trespass. The original attacker was also eventually convicted.  Gardiner was not acting in immediate self-defence. He was attempting to replace the justice system.

His case demonstrates both sides of the problem.  Private enforcement rapidly becomes dangerous. But when public enforcement appears absent, delayed or selective, people begin looking for substitutes.  The state cannot simply condemn the substitute while refusing to examine the vacancy that invited it.

Who Protects us from Police?

There is an obvious answer in constitutional theory.

• The courts.

• The IPCA.

• The media.

• Parliament.

• Police officers willing to report misconduct by their colleagues.

Those protections matter. They sometimes work. Police officers have themselves been charged and convicted for excessive force, including an officer convicted of assault with a weapon after repeatedly Tasering a fleeing rider whom the officer had no lawful power to arrest.  But most institutional accountability is retrospective.

A successful complaint two years later does not prevent an unlawful blow today.  A report finding excessive force does not remove the defendant from the dock.  An apology does not transform an abandoned complainant into someone who was protected when she asked for help.

That is the central weakness in the bargain. The state insists that citizens trust its judgment in the moment, while reserving the right to admit . . . much later, that its judgment was wrong.

Justice Cannot Depend on Whose Future Matters

The prosecution system is formally committed to transparency, impartiality and equality before the law.  The real test is not whether those values appear in legislation and official guidance.  It is whether they survive contact with someone powerful.

A farmer, homeowner or ordinary assault victim may discover that every questionable decision they made under pressure will be reconstructed and prosecuted.

A professional athlete or senior official may discover that the institution can also be extraordinarily sensitive to context, consequences and damaged careers.  That disparity is corrosive even where every individual decision can be legally explained.  The state’s monopoly on force is not a hereditary privilege. It is a continuing bargain with the public.

Citizens refrain from private violence because the state promises something better: competent investigation, lawful restraint, impartial decisions and equal protection.  When the state fails to protect people, prosecutes those who protect themselves, or shields people whose careers appear institutionally valuable, it may retain the legal power to demand obedience.  But it begins to lose the moral authority behind that demand.

The state cannot monopolise protection, ration its delivery and then prosecute the competition.