We’ll have more on the attack shortly, but meanwhile the court battle to scrap the new digitised drivers licences is getting hotter, following a court ruling that quarter of a million New Zealanders who are refusing to get the ID cards can still drive on their old paper lifetime licences.

The ruling, in the police case against former parliamentary press secretary Moana Sinclair, sends a clear signal that at least some members of the New Zealand judiciary hold grave reservations about the increasing powers the State is awarding itself: in this case the ability to seize and impound citizens’ vehicles, and forbid them to drive.

Sinclair had allegedly been caught speeding at 138 kph on a stretch of road near Marton, on State Highway 1, driving a Government-owned Nissan Maxima en route to meet her boss, Alliance MP Sandra Lee.

Discovering that Sinclair, a lawyer, had chosen not to upgrade her licence to the photo ID card, a police constable scrawled a note on a traffic ticket forbidding her to drive any further.

Although it wasn’t argued in the court case, there are grave doubts about the ability of police to prevent people from at least driving their vehicles home: former police traffic boss Neil Gyde told Newstalk ZB’s Leighton Smith in a radio interview that police were not immediately forbidding any driver from driving merely because they do not have a photo ID licence. Instead, drivers are supposedly allowed to drive home, which in Sinclair’s case was Wellington, and the driving ban takes effect from that point. Gyde, who was speaking generally rather than about a specific case, denied that his officers were overstepping the mark and said he’d received no complaints.

However, the controversy in the Sinclair case arose because the police constable then radioed ahead and arranged for another police patrol to intercept Sinclair south of Foxton and arrest her for "driving while forbidden". She was forcibly dragged from the vehicle and was injured in the process.

The issue, he said, turned on whether Sinclair was "unlicenced", as police claimed, and whether the police had any power forbidding a person to drive in such cases.

"The notice forbidding the defendant to drive was endorsed on a traffic offence notice. There is no form specifically prescribed by the Land Transport Act or its Rules for the giving of notice to a driver that they are forbidden to drive."

While section 113(2) of the Land Transport Act 1998 gives police the power to "forbid and unlicensed driver to drive a motor vehicle" it doesn’t set out how this should be done. Judge Perkins then looked at the definition of "unlicenced":

"The word ‘unlicenced’ is not defined in the Land Transport Act 1998," noted the judge, who then turned to the LTSA’s public discussion documents on the licences to assist him.

"The documents were issued by the Authority to better inform the public as to the reasons for issuing the new photo driver licences in place of the old lifetime licences. In these documents, a clear distinction is made between those drivers who are holders of the lifetime licence, and ‘unlicenced drivers’.

"Similarly, the Schedule to the Rule makes a distinction between ‘obtaining’ and ‘renewing’ a driver licence, and refers to road safety issues in the context of unlicenced drivers.

"Clearly such considerations of road safety do not apply to the situation facing the defendant who had proved the required standard of competency to drive a vehicle by obtaining her previously valid lifetime licence."

Judge Perkins found that a definite distinction exists between people whose licences have expired, and those who are truly unlicenced, and ruled that because Sinclair was not ‘unlicenced’, she could not be forbidden from driving or have her car impounded.

"Draconian powers are given to enforcement officers by these provisions," he warned. "Concern was expressed at the time of their enactment in the Land Transport Act having regard to the Bill of Rights Act implications. Having regard to these implications it seems to me to be more appropriate to interpret the provisions as restricting the ambit of the power specifically prescribed under s113(2), and thereby limit the effect of the power to seize and impound a vehicle under s98, than to allow by inference the wording of the latter section to extend the powers of a police officer to forbid a driver to drive a motor vehicle (and possibly to seize and impound) where the driver’s formerly valid licence had simply expired.

"Constable Maddaford had no power to forbid the defendant to drive. The draconian powers of forbidding to drive and possible seizing and impounding of her vehicle cannot be exercised in such circumstances."

The charges of being an unlicenced driver, driving while forbidden and resisting arrest were all thrown out, while the speeding issue was set aside for hearing on another date.

Judge Perkins went so far as to describe the new licence as an "identification card" at several points in his ruling, reinforcing the unease that many have towards the card and the liberties that police officers have begun to take in overstepping their powers.

While police can still issue tickets for failing to upgrade to the digi-licence, they’ve been told they cannot impound cars or forbid people from driving who still have valid lifetime licences – at least up until 12 months and 60 days have expired, requiring them to re-sit their driving test.

The police, naturally, are trying to appeal Judge Perkins’ decision.

Meanwhile those who argue conversely that the Courts cannot be trusted to uphold constitutional law when it goes against the Government have been given some heavy ammunition in the judgment handed down in the Lois McInnes case. McInnes sought a judicial review of the digi-licence scheme on the grounds that it had not been passed into law on a proper constitutional basis.

Despite agreeing with McInnes that former Transport Minister Maurice Williamson had indeed "acted unlawfully", Justice McGechan refused to overturn the scheme on the basis it would cause "chaos and mayhem".

The court heard evidence that the Government had prepared two draft proposals on the digi-licences: a yellow one intended for the public to see and prepare select committee submissions on, and a green one for political insiders that the public were not told about. There were significant differences between the two drafts.

The yellow, public, draft talks of a photo, signature, wall eyesight chart, and raising the driving age for young drivers to 17 or 18 years.

But the green draft contains words such as digitised photo, digitised signature, bar code, peripheral eyesite machine, existing drivers losing their licence sixty days after their birthday, and a 400 dollar fine for not carrying a licence.

Get the feeling the Government was taking the public for a constitutional ride?

McInnes and her barrister, John Gwilliam, have filed papers for a hearing in the Court of Appeal on the matter, and in the meantime McInnes is urging the quarter of a million people who have not upgraded their licence yet to continue objecting on the basis that the matter is still before the courts.

McInnes says she’s heartened by a poll showing 64% disapproval of the new licences.

Not that the McInnes and Sinclair legal actions are the only headaches in store for the LTSA and police. Auckland woman Carol Leader has obtained legal opinion from constitutional barrister Grant Illingworth that the use of a digitised photo and signature storage system is not authorised by the current law.

Leader has filed papers in the Auckland High Court for a judicial review of the licence scheme, and given that two courts have now found that the scheme is technically unlawful in various major respects, the Leader challenge may yet have an impact.

The website http://www.standupnz.co.nz is reporting that both Tower Insurance and NZI have swung in behind conscientious objectors, saying their insurance will not be affected by a refusal to obtain a new licence providing drivers meet appropriate eyesight standards and have not lost their licence as a result of an offence.

The website is also seeking public donations to pay for the legal appeals, expected to reach $60,000.

Meanwhile a graphic illustration of how some police officers have been exceeding their powers came in the arrest of a middle-aged healthcare practitioner, also caught speeding near Marton.

Mary Bowers, a self-confessed "mild-mannered homeopath and Reiki specialist" claims to have been throttled by the long arm of the law.

"I was trembling – being stopped by the police is not part of my life, and anything to do with breaking the law is intimidating to me. I let the window down and waited, and a hatless police officer came up to the window. He did not say, "Good morning, I am officer so-and-so, and I have stopped you because you registered 120kph on my screen", but abruptly and officiously asked to see my drivers’ licence.

"I felt scared by his intimidatory manner, which spelled trouble, but didn’t want him to know I felt scared. Why give a bully more power? I asked him his name, as I always like to know the name of a person I’m dealing with – it’s more friendly. He said that I had ‘no right’ to know it. I was astounded by his reply and his attitude and said, feeling bewildered, "But, you’re a public servant ….?" – but he then broke in as I spoke and said, "No, I’m not" and became even more officious. I said that I noted his number, E929. He stated that that was all I was entitled to know."

After discovering she was carrying her old lifetime licence, laminated with a photo witnessed by a JP, Officer E929 got tough. Bowers says she told him she was a "conscientious objector", and promptly got grilled about the legal grounds for her objection.

"I was very scared of him by this time and couldn’t think straight, and felt that there would be no point in going into it blow by blow because of his attitude. It was taking me all my time to keep my voice from shaking. He announced that he was going to the car to check on whether I had a licence.

"Shortly, he came back and said that, as he suspected, I didn’t have a licence. Again with triumph, said that he was going to impound my car, that I wasn’t going to be able to drive at all from that moment. I was stunned, felt really panicky, but tried to keep calm.

"He seemed to be enjoying the whole process. I tried to reason with him, thinking, stupidly, that I could appeal to reason and fairness, said that there was no-one to get me, that the whole thing was unreasonable. ‘It’s the law’ was the only response – he was totally inflexible.

"He said he’d drive me to Bulls so I could catch a bus. I’m a health professional, had a massage table, two briefcases, with notes and remedies, plus personal possessions and am not strong, and couldn’t cope with all that, just being dumped in Bulls and left, and by now I did not trust leaving my car, because of my personal safety and the safety of my possessions.

"Further, I was so afraid of him that not only would I not get out of the car and be at his mercy, I certainly would not voluntarily get in to his car with him to go anywhere. Then he said, "I wouldn’t want to leave a lady on the side of the road" in a sneering manner."

Bowers says she was becoming more and more intimdated by the constant heckling from the officer.

"So, to protect myself and to shut him out so I could try and quieten myself and think and to discuss it with a friend for support and advice, I put the keys in the ignition to enable me to activate the window controls to raise the window. There is very little difference between being able to activate the window controls and the ignition firing. Under normal circumstances I turn the ignition slowly so that it doesn’t advance too far and fire the ignition, but this was not a normal situation, and the engine fired.

"I had absolutely no intention of driving the car away – it would be very stupid to do that, and only make the matter worse. I wanted only to protect myself and to try and sort something out, and was too afraid of this man to even think to tell him of my intention.

"The unnamed officer, E929, went crazy. He instantly reached in and tried to grab the keys. I thought they had snapped, the force was so great. My hand was still on them – I hadn’t even had time to take my hand off them to activate the window control. My car was my only protection now that I was under attack by a strong man, out in the country. My fear was now exclusively for my personal safety.

"I had to stay in the car and keep my keys. If I got out of it, I’d be a goner. My mind went into shock – self defence, what do they teach you? ‘Get your hand off the keys!’ he yelled at me. He had his hands over mine, so I told him to get his hands off. No way, he was determined to have them. I had to defend myself and protect my security, the car, and thereby, my person.

"What do you do for self defence? Wrestling with him wouldn’t do any good – he was too strong. Poke them in the eye, you’re told. Still holding onto the keys in the ignition, I reached across with my left hand and ineffectually aimed it in his direction, to get him to loosen his grip, but no. So, I put my thumb into his elbow pit to try and make him loosen his grip, I was terrified of him.

"At this point he yelled that he was arresting me for assaulting a police officer. I couldn’t believe what I was hearing, for I was the one assaulted. Even typing this now, I feel sick, have a dry mouth and am shaking. Then he reached inside, wrenched the door open, let go of the keys – and I became truly terrified. He tried to pull me out of the car by my right arm, then pulled my hair – he’d lost control. I just sat there and let my weight keep me in the car. I had the keys in my left hand now, and said that I needed to make a phone call.

"Then he lunged at me, and it seemed as if he not only wanted the keys, but also my mobile phone. The terror was enormous. I bent over to the left, holding on to the keys and trying to shield the phone – my only physical protection and means of communication for help.

"He was right over me, and now I admitted my fear – I said I was really frightened of him, hoping that he might still get off me, but he seemed excited by that and redoubled his efforts. I made out as if I was going to bite him (I’d no intention of doing it and never got close to actually biting him, but if I’d really intended to do so, I could have, quite easily – I merely still hoped that he’d get the message) and, enraged, he finally wrenched the keys off me and went off to his car behind me.

"My hands were covered in cuts and bruises and one wound was bleeding. I was shaking violently, and managed to get the phone which to my relief he had not taken. I rang a friend, and tried to speak calmly, told her what had happened, gave her the officer’s number, E929, and the registration number of the car which he drove. I was sobbing over the phone and she spoke quietly and reassuringly to me so that I stopped sobbing, but I sat for ages, shaking uncontrollably. One patrol car came, but no-one came near me – just the two of them sat in the car.

"My hands were cut, bruised and painful, and a large bruise was swelling rapidly on the back of my hand. Both hands swelled, but especially my right hand. At no time was I ever offered the services of a doctor. I was also clearly extremely distraught and in a state of severe shock. Even I knew this with some degree of lucidity, and told the police that, because I couldn’t take in what they were saying half the time. They were indifferent."

Bowers says she eventually did receive some guarded support from within the police, with a local sergeant indicating Officer E929 had a reputation for his attitude, and a similar comment was made by another official. Despite that, the charge of assaulting a police officer would not be withdrawn unless Bowers agreed to take Diversion, where first offenders are discharged without conviction providing they donate to charity and write an apology to the "victim" – in this case E929.

Police officers told Bowers her statutory and common law rights to defend herself did not extend to defending herself from a police officer’s physical attack.

We asked the Police National Road Safety Manager, Steve Fitzgerald, why his staff were not allowing people to drive home, instead of pouncing on cars and seizing them out in the wop-wops.

Fitzgerald claims his officers had no instructions to follow such a policy, and were strictly enforcing the letter of "the law". "We must forbid people to drive if they do not have a current licence," he told the magazine.

After being challenged on the point, he demanded questions in writing, so we sent the following:

1 Neil Gyde is on record as saying that it was not police policy to prevent people from driving their vehicle home after being forbidden to drive. What is your position on this?

2 The legislation states only that police "may" at any time, forbid an unlicensed driver to drive a motor vehicle. Where do you claim legislative authority for your claim that you "must" forbid unlicenced driv ers, because clearly such authority does not exist, and appears to be a matter of police policy only.

3 What right do police have to prevent any motorist from driving home, where there is no factual evi dence to suggest that they are an unsafe or incom petent driver?

4 Why should any driver take the police seriously in such circumstances?

5 You told me that you had to take such a stand because "that’s the law", which I specifically note is the same defence unsuccessfully raised at the Nuremberg Trials of Nazi war criminals. Has the same mentality now crept into the New Zealand police?

6. I ask you in all seriousness, given your committment to enforcing "the law", whether if Parliament decreed that all women over the age of 40 were to be ar rested, the police would carry out such a legislative order? I am not trying to be funny: I am wanting to find out whether you as a senior police officer would instruct your staff to enforce any legislation passed by Parliament, regardless of its morality. Because that is the position you have taken with me so far.

In response, Fitzgerald fired back a two-sentence fax:

"Driving is a privilege, not a right. A person who drives that is not eligible to drive is disobeying the law. A Police Officer is only doing their duty by preventing them from driving further. It is at a Police Officer’s discretion as to whether they prevent a driver from driving. We have confidence in our officers to exercise this discretion appropriately."

If you’ve begun to get a feel for how the police perceive their muscle under the new laws, then you’ll probably anticipate our next question to Police National Headquarters: "Where can you point to anything in the legislation that says ‘driving is a privilege, not a right’?"

Police media spokeswoman Sarah Martin acknowledges "there is nothing in the legislation that says it is a privilege, but that’s Steve Fitzgerald’s opinion."

The ability to travel on a road, unhindered by official interference, has always been a right, not a privilege, and in fact it was such a major right that it gave the previous National Government severe legal grief in its plans to privatise the roads. The question now is whether the Courts will uphold the constitutional law, or whether they’ll simply back the Government.