For law geeks only ...

I realise repeated posts on the issue of hidden video cameras is not a sure-fire way to increase traffic to this blog, but here we go again ...

Please forgive yet another post on the topic of the Government's "fix" for the problem of hidden video camera surveillance, but I have been invited to give evidence tomorrow before the Justice & Electoral Committee on this matter and so I thought I'd take the opportunity to share my thoughts  (in the hope that if what I'm saying sounds completely silly, you can help save me from some embarrassment by telling me so in the comments section below). Consequently, this is going to be a somewhat dry and technical legal discussion.

Sorry about that.

I think we need to begin with problem definition - exactly what is it that the Supreme Court said in Hamed v R, and why is it a problem? The explanatory note to the Government's Bill states:

The Crown Law Office has advised that the decision of the Supreme Court in Hamed & Ors v R (the Hamed decision) has the following serious implications for government agencies:
(a) the use of covert video camera surveillance as part of the exercise of a search warrant (allowing entry onto private property) is unlawful:
(b) all covert video camera surveillance, including use of “over the fence” covert video camera surveillance (ie, non-trespassory surveillance, for example, by filming private activity from public land or from private property with the consent of the owner), is also likely to be held to be unlawful:
(c) if video camera surveillance is unlawful, it is likely to be found to be unreasonable and in breach of section 21 of the New Zealand Bill of Rights Act 1990. Any evidence obtained is at high risk of being held to be inadmissible:
(d) this will jeopardise both current prosecutions in cases already before the courts and ongoing investigations by the Police and other law enforcement agencies.

I have no problem with (a). But I honestly cannot see how Crown Law reaches the conclusion in (b) after reading Hamed. Yes, Elias CJ can be interpreted as saying that. But nothing in the other 4 judgments goes anywhere near saying "it is not lawful for the Police to covertly film in public/from consenting neighbour's land", or "the Police must have specific authority in law to covertly video people". What Blanchard J (with whom Gault J agrees) and Tipping J do indicate in obiter is that some forms of non-trespassory covert filming may constitute "unreasonable searches" and thus be unlawful as they breach the NZBORA, s.21 ... but this does not seem to be what Crown Law is saying (given (c) above - which also overstates matters, in my opinion). And, in any case, the Attorney-General is on record as saying that the intent of this Bill is that the courts may still determine that a given use of covert video surveillance is unreasonable in a NZBORA, s.21 sense - so I'm not sure that the proposed legislation would solve the issue in any case (if it is the NZBORA that Crown Law is worried about).

Consequently, I wonder if the Bill isn't an overreaction that is based on a misunderstanding of the Supreme Court's ruling ... the only "new" problem is that the Police (and other investigative agencies) have been definitively told that they cannot covertly video upon a suspect's land/property in any situation, as that will be both a trespass and (in almost every case) an unreasonable search. (I say this is a "new" problem because it seems pretty clear that the Police and Crown knew the practice is (at the least) of dubious legality - see, e.g., Hodgkinson v R [2010] NZCA 457 where the Crown conceded a search warrant could not lawfully authorise the trespassory planting of a camera, and while the Court of Appeal expressed "some doubt about that conclusion and consider that it is strongly arguable that a warrant can properly be issued to authorise unmanned video surveillance on a property in circumstances such as the present", it also recognised there were arguments either way and so continued on the basis the camera's use was unlawful).

Assuming that this (narrower) problem is still a real one, what then ought to be done about it? Here we may separate out past uses of covert video from prospective ones. The Bill's intent (at cl. 5(1)(a)) to retrospectively deem past covert filming "lawful" is (in my opinion) an unwarranted (no pun intended) intrusion into the judicial role.

  1. The Supreme Court's role as the final "declarer" of the law's meaning at any given point in time demands a degree of deference from Parliament - even if MPs would rather another, lower court's understanding of the law applied to existing and past cases they ought to respect the functioning of the judicial hierarchy and refrain from effectively promoting a lower court's judgment on the matter over a higher court's one.
  2. The claim that this decision is something of a bolt from the blue that has radically unsettled established understandings of the law is (with respect) pretty tenuous. No court before the Court of Appeal in Hamed had said that trespassory covert filming is lawful ... and the Supreme Court then said this decision was wrong in law. (Hodgkinson expressed some doubt on the matter, but hardly could be said to have resolved it.) The previous Court of Appeal rulings that covert videoing was permissible (Fraser and Gardiner) related to non-trespassory uses - which I do not think are affected very much at all by the Hamed ruling. So if the claim is "we always thought this was legal - until the Supreme Court hit us from left-field", I just don't buy it ... it smacks of a degree of wishful thinking on the part of the Police and the Government.
  3. The alleged consequences of the Supreme Court's decision - that "any evidence obtained [from the unexpectedly unlawful use of covert videoing] is at high risk of being held to be inadmissible" - flies in the face of the Evidence Act 2006, s.30 and its application by the judiciary. So, in Hamed itself the evidence against those accused of the more significant offences can still be used. In Hodgkinson, the court allowed the evidence obtained by video to stand. Admittedly, both of these cases related to "low privacy" surveillance - and in cases where cameras were used to intrude more directly into homes, etc the balance may be different. But, so what? If this intrusion was unlawful (and the Police knew it was somewhat dubious) why should it now be validated? Equally, if the evidence was gathered in a particularly intrusive way, then isn't it in any case highly likely to be an "unreasonable search" under NZBORA, s.21 ... and thus improperly gathered ... and thus subject to s.30 anyway?

Consequently, I can see no convincing justification for including a retrospective element to this proposed legislation.

Going forwards, then, how should the Police be given the power to use trespassory covert video surveillance (assuming this is a necessary and desirable power for them to have)? My preferred option would be a warrant-based system ... if the Police think they need to do it, then get a court to authorise it. The Attorney-General tells us that the suggested fix of importing the relevant sections from the Search and Surveillance Bill into the Summary Proceedings Act won't work - it would require too much work and fiddling to accomplish in the limited life of this Parliament. I assume he is right about this, as I have no way of saying he isn't. Another possibility, I suppose, is to graft "covert videoing" on to the "electronic interception warrants" that may be obtained under the Crimes Act and Misuse of Drugs Act ... but again I suspect there would be problems making the statutory regime work properly (to say nothing of the fact that this would then mean such warrants would be available for only a narrow range of offences).

If a warrant-based approach really will not work, then I suppose the Government's proposal is all that remains. This would deem covert videoing to be lawful (in cl.5(2) if part of a search which is properly warranted if trespassory or is non-trespassory (cl. 4, definition of "search"). That gets rid of the problem of trespass (as well as answers Elias CJ's point about needing authority to carry out any covert filming at all - but I don't see it as adding much to the other 4 judgments in Hamed). However, the Attorney-General claims that "unreasonable" uses of this lawful power (i.e. those that infringe on the right in s.21, NZBORA) are not touched and will remain unlawful - thus the absence of a s.7 report on the Bill. If this is the case, then I think the Government's Bill should say so explicitly ... perhaps include a general statement that nothing in the Bill is intended to limit any of the rights contained in the NZBORA or similar ... to remove the apparent contradiction between a given use of covert video being said to be not "of itself ... unlawful" (cl.5(2)) whilst also being unlawful because it is in breach of NZBORA, s.21.

There perhaps are two last points worth noting. First of all, much of what Blanchard and Gault JJ and Tipping J say in relation to what makes covert filming "unreasonable" remains good law - so there must still be real doubt about whether highly intrusive uses of video surveillance will be permitted in any given case, and certainly there would be grounds to challenge such uses after the fact. The actual impact of this Bill is thus quite limited (in spite of the rhetoric that both sides of the debate are using in relation to it). Second, the Bill has no restrictions on who may engage in covert video surveillance other than that their "search" must fall within the NZBORA s.3(b). Consequently, the non-trespassory use of covert video by all those exercising a public function, power or duty is "lawful", while the trespassory use of covert video under warrant by all those exercising a public function, power or duty is "lawful". I don't know enough about the various ways one can get a warrant to enter property, but it seems to me that this is an awfully big expansion of the powers of at least some investigative agencies ... is there a risk a nut is being opened with a sledgehammer here, or is the (implied) safeguard that "no unreasonable searches are allowed" sufficient to control the power?