Further on "the Geddis solution" ...

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!