Rot at the highest level: the McSkimming cover-up and the erosion of the rule of law

David Harvey

The rule of law is one of the foundational principles of constitutional democracy.

It is not a single rule or statute, but a set of interlocking ideas about the nature of political authority, legal restraint and the conditions under which government power may legitimately be exercised.

Its essence is that law – not individuals – governs the polity and that all exercises of public power must be rooted in, constrained by and accountable to the law.

At its core, the rule of law rejects the idea that government can act through arbitrary or discretionary fiat. Public officials – from ministers to constables – must act within and according to the legal powers Parliament or the Constitution grants.

All individuals – from prime ministers to ordinary citizens – are equally subject to the law. This principle requires equality of access to justice, equality in legal rights and obligations and the absence of privileged legal classes or immunities inconsistent with democratic accountability.

The rule of law constrains government power and ensures that majorities cannot act outside legal limits.

It protects individual rights and freedoms.

It ensures the accountability of public officials and, most importantly, it fosters public confidence in democratic institutions.

Citizens can see that the laws are applied fairly; that the courts are open and transparent; that judges are independent and unbiased and that government official are held to account.

 

Culture of legality

Public trust and confidence are essential because in the end the government and its institutions ultimately rely on public acceptance of the legitimacy of its authority.

But the rule of law goes beyond the institutional realm. It operates through a culture of legality. It requires respect for legal norms by citizens and officials, habitual compliance by state actors, a commitment to constitutionalism, openness to scrutiny and entrenched expectations of fair process.

A society may have democratic elections but lack the rule of law if these cultural and institutional commitments are absent.

A democracy without the rule of law degenerates into elective autocracy, while a legal system without democracy risks becoming authoritarian.

Together, they form the architecture of a free and stable society.

 

Unique position

At the front line of the rule of law in our society are the police and the courts. Both rely on public trust and confidence for their continued legitimacy.

The police occupy a unique position in the rule of law scheme. Most importantly, they are independent of the State. They are not enforcers of State policy. They are enforcers of the law.

No minister may interfere with police operations or direct police investigations.

The Commissioner of Police and all sworn members make law enforcement decisions (such as deciding how to investigate a crime or which laws to enforce in a specific situation) impartially and independently of the government of the day.

The police force is a non-public service government department, giving it a different legal and constitutional relationship with ministers than typical public service departments, which further enshrines its independence from direct political control.

They have extensive and wide-ranging detection and enforcement powers. They investigate crimes, keep the peace, maintain public safety and bring offenders before the courts.

The powers of police officers are set out in law. Most significant is the power of arrest and detention. In addition, there are provisions in the law which make it an offence to obstruct or resist a police officer. There is a specific offence of assaulting a police officer in the execution of his or her duty.

 

Accountability and transparency

This framework is designed to protect the police from political influence and corruption, which is vital for maintaining public trust and confidence, considered essential for effective policing in New Zealand.

This is the societal trade-off for giving the police those powers.

Police officers work under the rule of law, respecting human rights and operating professionally, ethically and with integrity to maintain the trust of the communities they serve.

Most police officers do not routinely carry firearms, with exceptions for specialist units like the Armed Offenders Squad (AOS) or officers at international airports.

And in the background is an entirely independent oversight body, the Independent Police Conduct Authority (IPCA), which investigates complaints about police misconduct, practices and procedures, ensuring external accountability and transparency.

The IPCA can conduct its own investigations and make recommendations to the commissioner.

 

High-level rot

Society expects the highest standards of its police officers from the constable on the beat to the commissioner’s office in Wellington. And when those standards are not present, there must be an almost automatic erosion of public confidence in the police.

Indeed, the police force has had its problems recently. A failure by police to alert the Beehive when a press secretary’s phone was found at a brothel; more than 100 police recruits who had been allowed to start training despite failing fitness and language tests; that over the past five years a total of 159 serving police officers have been charged with crimes, including serious family violence and sexual offending.

None has been dismissed. In October 2025, it was revealed that more than 100 officers are under investigation for falsifying breath tests.

And it is clear, from the McSkimming scandal, that the rot was at the highest level.

We should be grateful for the IPCA report and its thoroughness. Along with the tenacity of a New Zealand Herald reporter in challenging a suppression order that could have been made permanent and which would have kept the whole business (apart from McSkimming’s prosecution for possession of objectionable images) under wraps.

There can be no doubt that there were a number of steps taken by the police top brass to cover up McSkimming’s behaviour. It should be noted that the objectionable images were not a part of this.

But the efforts that were taken to run interference for one of their own and help him obtain the commissioner’s job is extraordinary. The IPCA report sets out a collection of interference, manipulation, feigned ignorance, omissions, distortions and just-following-orders justifications.

But the public may never have known the detail of the matter.

 

The cover-up

The police had commenced a prosecution against a woman with whom McSkimming had an affair. The prosecution involved allegations of breaches of s 22 of the Harmful Digital Communications Act.

Associated with that prosecution, a suppression order was made, including suppression of McSkimming’s name.

The argument in support of the order was that the woman’s allegation were false and being made deliberately to damage McSkimming’s career and promotion opportunities. Name suppression would save him from further severe reputational damage.

The insertion of the word ‘false’ by a top officer into the police summary of facts without any investigation of the woman’s allegations was the subject of strong criticism by the IPCA in its report.

The original defence lawyer consented and the order was made by the judge based on the information he was given.

That suppression order meant that McSkimming could continue to put his name forward for the upcoming vacancy as Commissioner of Police, and did so through October and November 2024.

His involvement in the case of the woman before the court was not able to be known to panellists from the Public Service Commission.

Furthermore, Commissioner Andrew Coster did not offer the information and a police executive with detailed knowledge of the situation did not mention it in providing a reference.

 

Coster’s role

The IPCA report stated of Coster

“At the very least, he should have made PSC aware of the risk of the allegations against Mr McSkimming being raised in the legal proceedings involving [the woman], even if these were suppressed.”

An interesting side bar about Coster.

He was appointed to the commissioner’s position with a brief to bring a new style of policing to the force.

The commissioner holds office at the pleasure of the Governor-General of New Zealand. Under s 12 of the Policing Act, the Commissioner is appointed by the Governor-General on the recommendation of the Prime Minister. The Prime Minister who recommended Coster’s appointment was Jacinda Ardern.

The level of cover-up both through the actions of McSkimming’s colleagues, acting internally and via their court prosecution of his accuser and suppression of his name, had limited who could know what about this contender to lead the force.

So apart from the various other elements of cover-up and evasiveness on the part of the police top brass, there was their use of the courts to prosecute a complainant and use court processes to further the cover-up.

There may be damage – serious damage – to public trust and confidence in the police when the rot and corruption are present at such a high level. But, in addition, the activities of these officers challenges some fundamentals that underpin their independence and the rule of law.

Like it or not, another institution central to the rule of law that depends on public trust and confidence – the courts – has become involved.

 

Confidence and legitimacy

Alexander Hamilton in Federalist 78 described the judiciary as the weakest branch of government. It lacked the power of the purse and the power of the sword.

By this he meant that the judiciary – the courts – have no control over government finances and cannot direct the wealth of society. That power lies with the legislature which can fund or defund the courts. In addition, the courts cannot command the military nor require the executive to enforce its decisions.

The effectiveness of the courts as an arm of government depends on the co-operation of the other branches of government and, most importantly, on public trust and confidence in their legitimacy.

Public trust in institutions is fragile. And the courts rely on continued public trust and confidence in the role they perform in a society that is based on the rule of law. The mere presence of the courts –their structural existence – is insufficient.

So why does this public confidence matter? The rule of law depends on people believing that the courts uphold rights equally, resolve disputes justly and hold both individuals and the State accountable to law.

Courts must be seen as fair and open, with most hearings accessible to the public, in order to demonstrate that justice is delivered without fear or favour.

Judicial legitimacy in New Zealand relies directly on public trust that judges and the judiciary, as a whole, are independent, impartial, skilled and reflect the wider community.

The judiciary doesn’t engage in public relations exercises. New Zealand judges maintain a limited public presence and rarely explain their operations or functions outside of formal judgments due to the strong emphasis on judicial independence, impartiality and the principles underpinning “open justice” in New Zealand’s legal system.

This approach is a deliberate safeguard designed to protect the judiciary from influences that might compromise impartial decision-making or public confidence in the courts.

 

Speaking through judgments

The Chief Justice and Chief District Court Judge publish annual reports about the activities of the courts as part of a public information exercise. Occasionally the Supreme Court will issue a media statement explaining the outcome of a particularly complex or important case.

Beyond those elements, judges “speak” through their judgments which are considered their primary mode of communication.

Occasional extrajudicial speeches or articles may occur, but these are infrequent and usually restricted to legal education or systemic commentary, to avoid any perception of bias or partiality.

This limitation maintains the separation of powers and is designed to uphold public confidence in judicial neutrality.

 

The media

The principle of open justice – that justice must not only be done but must manifestly be seen to be done – is essential in maintaining the public confidence essential to the legitimacy of the courts.

In this respect, news media play a vital role as representatives of the public, reporting cases before the courts.

Because of the complexity that underlies legal processes, it would be helpful for the purposes of public understanding for there to be more information available – some “explainer” articles about matters such as sentencing, discharges without conviction, name suppression or why some evidence may be excluded.

 

Name suppression

One of the aspects of judicial work that receives regular attention from the news media is that of name suppression.

Suppression – or non-publication orders as they are correctly called – when inadequately explained or reported gives the perception of a cover-up or, more importantly, of unequal treatment of a class of defendants, especially if the case involves the regularly appearance of a “well known New Zealander”.

Courts in the United Kingdom, Australia, Canada and South Africa have provisions for suppression orders so New Zealand isn’t unique in this regard. But New Zealand’s system is distinctive in how frequently suppression orders are granted and their breadth.

There has been ongoing debate about whether suppression orders are overused, particularly when they protect accused persons (including prominent individuals) rather than just victims or witnesses.

Critics argue this can undermine open justice principles, while supporters contend they’re necessary to ensure fair trials and protect rehabilitation prospects.

As a matter of public perception, however, the apparent overuse of suppression orders has a corrosive effect upon public trust and confidence in the courts.

But other tools are available which can obscure the ability of the public to see justice done.

 

Access to documents

One of the important tools that journalists and the public have to find out what is going on in a case is the ability to see the documents that comprise the court record.

A judge’s decision is always available unless its publication is restricted, generally to ensure protection of fair trial rights further down the track. In criminal matters, a judge’s sentencing remarks are available as of right, along with the permanent court record.

But there are exceptions to these rules.

The exceptions, contained in the Access to Court Documents Rules for the Senior and District Courts, can create a fog around the transparency of proceedings essential to the principles of open justice.

Unless the restrictions on publication are fully and adequately explained, there is a further risk of erosion of public confidence in the courts.

But there are other threats to public confidence in the courts.

 

Populist politicians

Negative perceptions, often sparked by high-profile cases or criticism of judges, can undermine trust even where the judiciary generally maintains high standards of integrity and independence.

Contrived critique of the judiciary or indeed of individual judges by populist politicians can be particularly concerning, even though the politician may be called in for a ‘discussion’ with the Attorney-General and a reminder lesson on the separation of powers. But the publicity surrounding the ill-considered critique has done its damage.

That level of critique which often is interpreted as a lack of confidence in the ability of the judiciary can result in what could be termed legislative adjustments to judicial powers.

Often this results in a reduction of the discretion of judges to craft a result that suit the particular circumstances of the case. Some examples can be seen in the reinstitution of the “Three Strikes” rules and the maximum discounts that may be allowed in sentencing.

This can be interpreted as a legislative vote of no confidence in the judicial arm when it comes to sentencing, and one must question whether there is true deference to the separation of powers.

 

Public trust

Surveys indicate that around 60% of New Zealanders express trust in the courts and the judicial system. However, ongoing challenges such as barriers to accessing justice, poorly designed laws and under-resourced courts can impact confidence and require constant attention.

So, what can be done?

Open justice principles, including transparent hearings, published judgments and access to court records, are central to maintaining public trust.

Judicial independence is protected through constitutional safeguards preventing outside interference in judges’ appointments, salaries and decision-making. There is no appetite for an elected judiciary.

Accountability mechanisms include the ability to make complaints about judicial conduct and appeal decisions. The Judicial Conduct Commissioner entertains complaints about the judiciary but not about their decisions.

Ultimately, public confidence depends on citizens seeing the courts and the police as fair, impartial and accessible – institutions that reflect their values while standing above politics and corruption.

Without that faith, the police are no more than a paper tiger, distrusted and to be avoided in times of trouble.

Without that faith, the judiciary’s moral authority–the only sword it wields– grows dangerously blunt.

And in either case, the rule of law suffers.

 

David Harvey is a retired District Court Judge, a member of The Law Association’s Public & Administrative Law Committee and a member of Sangro Chambers

The above was first published as ‘The Halfling’s View’ on Substack and is republished