My name is being dropped as the author of a potential way to fix the "problem" of covert video surveillance following the Supreme Court's intervention in the Urewera trials. What are the issues at stake?

Given that there's now real debate about the best way to deal with the aftermath of the Supreme Court's decision in Hamed v R - the case that calls into question the Police's power to use covert video surveillance to gather evidence - here's some more thoughts on that issue.

(I note this post largely is a repeat of a reply I made to Tim Watkin in the comments section of my last post, but I thought its length and content made it worth giving it the status of a post all on its own.)

The Government says that its proposal to legislate in this area is simply "returning the law to what it was before the Supreme Court ruled". Is this correct?

I think that saying "all covert video surveillance is lawful" actually would extend the potential scope of its use by the Police. No court has ever said that the Police can use covert video surveillance in any way they want any time they lawfully can carry out a search ... the most that has been said is that certain uses of covert video surveillance in particular circumstance are not unlawful, because they were not so intrusive as to amount to unreasonable searches under the NZ Bill of Rights Act. While the Supreme Court in Hamed v R has said that some kinds of covert video surveillance are unlawful (as constituting "unreasonable searches"), this is simply drawing a line that everyone knew must exist ... even if no-one knew exactly where it was. Thus rubbing that line out and saying there isn't one in place (because all uses of covert video surveillance are lawful) doesn't "return the law" to where it was - it rather creates a greater power than previously existed.

What then is the effect of the Supreme Court's decision?

Pending cases (where the evidence has already been gathered) can, as repeatedly noted, be dealt with under the Court's discretion in the Evidence Act if it turns out evidence was unlawfully gathered (which is not the case for every covert use of video surveillance, even after the Supreme Court's decision). This requires a case-by-case balancing ... but if the charges are serious, if the evidence is of great value, and if the Police acted in good faith it likely will stand. However, current investigations are a problem, because the Police cannot now use an investigative tool they know to be unlawful (and if they do use it, the courts are very, very likely to throw out the evidence gathered).

So, what to do about that?

One approach is to do nothing and wait until Parliament gets around to resolving this whole issue next term when it finally passes the whole Search and Surveillance Bill into law. This would mean that until then the Police could not use some forms of covert video surveillance (those which are so intrusive as to constitute an "unreasonable search" under the NZ Bill of Rights Act) ... requiring them to use other investigative methods to detect crime and gather evidence (like they did before the technology was available).

The second approach is the Government's proposal - to apply a blanket legal validation to covert video surveillance in the past and for one year to come. This would effectively give the Police (and all other investigative/enforcement bodies, note!) a complete discretion as to when and how to use this investigative technique ... and no matter how intrusive or extensive its use, or the reasons for its use, the courts would have to accept the evidence produced.

The third approach ("the Geddis solution") is to provide a legal mechanism by which positive authority can be given for the use of covert video surveillance that otherwise would be unlawful (as an "unreasonable search" under the NZ Bill of Rights Act), by importing the relevant provisions from the Search and Surveillance Bill. I accept that this may be ungainly, and may need tweaking to avoid the problem of "linking with other laws". However, such a warrant regime presently exists for "interception devices" (i.e. bugging phones/rooms/etc to hear what people are saying) under the Crimes Act 1961, s.312A-Q ... so I'm not convinced problems are insurmountable.

Anyway - them's the choices. I note there is no perfect solution to this problem ... there's only a least worst one. And it may be that the Government's proposal is the least worst one we've got on the table. I'm just glad it isn't me who has to make that final call!

Comments (8)

by Nick S on September 23, 2011
Nick S

So the only real problem is the 50 or so investigations that are currently underway. Even if the police were acting in good faith in using covert surveillance at the beginning of the investigation, and it's use in court would have been allowed under the Evidence Act despite being unlawful, they have to rethink their investigations.

What about passing a temporary amendment to the Evidence Act that only applies to the 50 investigations currently underway. This could say that the usual balancing test be carried out, but that the police's knowledge that this type of surveillance is unlawful should not be considered by the courts. This would not apply if the use of covert surveillance was not already underway at the time of the SC judgement.

(Not trying to steal your thunder, Andrew, just thinking out loud)

by Andrew Geddis on September 23, 2011
Andrew Geddis

Nick S,

There's a question as to whether Police should be able to knowingly carry on illegal activities in the hope the Courts let the evidence in after the fact. Isn't it better to find a way to give the Police lawful authority to do it in the first place (either by way of a specific warrant, or by across-the-board saying the use of hidden cameras is lawful)?

Your suggestion also would leave the problem of investigations that may begin tomorrow (or next month) that genuinely may need to use covert video surveillance (in a way that might be deemed an "unreasonable search" under the S. Ct's approach in Hamed v R). These wouldn't be able to be used under your suggestion, at least until the full Search and Surveillance Bill is passed. Is that a problem in your eyes?

by on September 23, 2011
Anonymous

What I find most concerning in all this fervour is the prevailing attitude amongst parts of the legislature to "fix" decisions of the Court.

by Nick S on September 23, 2011
Nick S

Any change in the law end up authorising Police activities that are, at this moment in time, illegal. The Police are probably continuing these currently illegal activities in some of the 50 ongoing investigations, as they can be fairly sure something will happen to legalize it... If I understand your idea correctly, the Police would be allowed to apply for warrants for ongoing investigations, effectively granting retrospective authorisation.

My idea would essentially treat each case as being the first, in terms of deciding where the line is for covert surveillance, which simulates the Police's understanding of the law when the decision to use covert surveillance was made. This seems defensible to me, even if we now know where the line will be drawn in these cases.

Parliament could still implement your idea, to apply to investigations about to start, if it feels a stopgap is needed before the full S & S Bill is passed. But from a practical standpoint, it is surely easier for the Police to change their plans for gathering evidence in investigations that have not yet begun, than in ones that are underway. This would make the passing of those clauses less urgent.

So no, that's not really a problem in my view.

by Tim Watkin on September 23, 2011
Tim Watkin

Just argued your case on my 5.25pm Newstalk ZB slot, Andrew. Thanks for making my research so easy!

by Dean Knight on September 24, 2011
Dean Knight

For those not on the dreaded Facebook (that's you Geddis!), some of us have been wondering whether the Attorney-General will be obliged, after he introduces the Bill, to then report its inconsistency with the Bill of Rights...

by Andrew Geddis on September 24, 2011
Andrew Geddis

Dean,

It rather depends on what clause 5(2) means.

Para (a) says that covert video surveillance as part of a "search" - the definition of which under cl.4 is another issue ... especially how para (b) relates to para (a) - is lawful. Read on its face, this means that provided the rest of the search is lawful (i.e. properly warranted (if trespassory) or no warrant needed (if non-trespassory)), then covert video surveillance can be used anywhere, anytime.

But then para (b) says that the use of covert video surveillance does not "of itself render the search unreasonable." The implication of this is that there must be some searches using covert video surveillance that are unreasonable because of how they are mounted (and thus in breach of s.21 ... and thus unlawful) - it's just that the use of covert video surveillance of itself don't make it so.

This could be argued to mean that the Bill isn't NZBORA inconsistent, as it does not permit any "unreasonable searches" - it just says that covert videoing isn't automatically unreasonable (because its use is lawful). But it then leads to a couple of questions:

(i) How does this Bill really change the ruling in Hamed, except to say that there is now authority in law to put video cameras on people's property? After all, as I read Hamed, no-one except Elias CJ thinks all uses of covert video surveillance are unlawful ... just that its use in an "unreasonable" fashion is unlawful. And yes, the fact there was no legal authority to put cameras on property was a part of deciding the searches in Hamed were unreasonable ... but might their use not still be unreasonable (and thus unlawful) in any given case even if the law says putting them there was lawful? Further, I don't see how this changes the issue of covert video surveillance that is non-trespassory ... saying it is lawful (unless part of an unreasonable search) simply returns us to the question "when is it unreasonable to use covert video surveillance to spy on people?"

(ii) There's the potential for a lot of confusion in saying that covert video surveillance is lawful (para a) but not if it is used as a part of a wider unreasonable search (para b). Certainly, if I were a defence lawyer I would be exploiting that tension for all I was worth ... and so if the Bill is intended to clear things up/stop appeals/give the Police certainty, I'm not sure it will achieve that.

by on September 26, 2011
Anonymous

Andrew

Good job trying to get this Bill through a s 7 vet, but I am not sure it works.

It is trite that a lawfully empowered search can be conducted in an unlawfully unreasonable manner.  Just because the police have the power to strip search someone does not mean they can do in on Queen Street at rush hour when they could have just as easily done it behind a closed door. 

The Bill clearly recognises that there will be other things that may render an empowered search s 21 unreasonable.  However, it equally clearly tries to make it impossible to argue that any aspect of the use of a video surveillance camera renders any search s 21 unreasonable.

Section 5(2)(b) says that "the use of covert video camera surveillance ...does not of itself render the search unreasonable."  "Use" in this context is defined in s 4 to include "(without limitation) the positioning, installation, maintenance, and removal of the camera."

So explicitly and unavoidably (regardless of any s 6 wordnastics), were this Bill to become law, it would not be open to someone to say that the use of video surveillance was in breach of the s 21 right to be secure against unreasonable search merely because of the camera's positioning.

I would argue, and I expect you would agree, that a camera’s positioning would otherwise be well capable of rendering the surveillance in breach of s 21.  Absent a breach that has nothing to do with the positioning of the camera this Bill legalises bedroom cameras, toilet cameras, shower cameras, upskirt cameras etc.

There is also little doubt that the Government is intending the Bill to remove BORA arguments about the detail of the use.  As the AG's covering letter to Charles Chauvel made clear, the Government do not want other cases to be left to be decided under s 30 because the evidence might be excluded where "there was a high degree of expected privacy" relative to the Operation 8 case.

Felix

 

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