Once upon a time in te Urewera ...

Smile! You may be on Police camera ... and may be again.

Back in 2006, some information found its way to the ears of the NZ Police. Apparently a bunch of Maori activists, environmentalists, social justice campaigners and the like were gathering in the Urewera back-blocks and talking revolution. What is more, they were doing so while playing with guns and other nasty stuff.

This is the sort of rumour you can well imagine the Police being very interested in under any circumstance. But in the post 9-11 world, the whiff of "terrorism" was catnip to a force that had seen its resourcing enhanced to combat just these sorts of dangers. And so Operation 8 commenced.

The final chapter of that saga has yet to be written, and won't be until the remaining 4 defendants have their day in court early next year (and then possibly appeal ... and so on). As it is, it has enough twists and turns in it to fill a dozen posts, so I'm not even going to try to give a full account. Because it is the Supreme Court's verdict on some of the Police's actions when investigating the alleged criminal activity that I want to discuss here, along with the Government's just announced intention to undo the effect of that verdict on other cases.

(Note that I say "some" of the Police's actions because the most troubling to me - the effective mass-detention of the people of Ruatoki by armed police in order to arrest two individuals - has yet to be fully scrutinised by the courts ... although one suspects that will come.)

So let us go back to the Police, hearing about this apparent serious threat of armed violence brewing in the bush. Obviously they want to know what is going on at these "training camps", as well as who is involved in them. Accordingly, when they hear that a camp is in the offing, the Police obtain warrants authorising them to go onto the (Tuhoe owned) land where the camps are expected to be held to collect evidence as to what is going on.

All well and good, you may think. The Police have reason to suspect a crime is brewing, so they make sure that they cross their legal t's and dot their formal i's when gathering evidence of that crime. Just what a good Police force should do.

But ... there's a but. Some of the warrants that the Police sought for their evidence gathering activities were not to search for stuff already in place, but rather to collect stuff that might get brought onto the land when and if the camp went ahead. And the statutory provision authorising the issue of search warrants does not on its face appear to permit granting "prospective warrants" - permission to search based on what is believed will be there in the future - but only warrants to search based on what is believed is there at the time of issue.

Furthermore, the evidence that the Police wanted to gather didn't just include physical material like bullet casings or the like. It also included photos and video footage from cameras that the Police installed covertly whilst conducting their physical searches. However, there presently is no provision in New Zealand law allowing the Police to conduct covert video or photo surveillance of suspects. It simply is not one of the activities that the Police can get positive authorisation for under a search warrant - just like they can't, for instance, get authorisation to torture suspects or the like.

And these are the two points that have led to the collapse of the cases against 13 of the 18 arrested at the end of Operation 8. Here's what the Supreme Court has said.

First, because the Police obtained at least some search warrants on a prospective basis - to gather evidence that might be present in the future - these were without lawful basis as the relevant statutory provision did not permit warrants for this purpose. And as the Police did not have proper lawful authorisation - valid search warrants - to be on the land where the camps were held, they were trespassing on it. And that then meant any physical evidence obtained as a result of those searches was obtained unlawfully.

(Note, however, that the Supreme Court didn't say that prospective warrants should never be able to be given. After all, there is no real difference between the Police believing that drugs will be delivered to a warehouse in a week's time and the Police believing that drugs are present in the warehouse now. So, in principle if the latter can be the basis for granting a warrant to search today, then the former should be the basis for granting a warrant today to search in a week's time. But that is not what the present statute says ... and the Court states that it is up to Parliament to change the law if it wants it to say that.)

Equally, the fact that the law does not positively permit the Police to engage in covert video or photographic surveillance of suspects means that the Police have had to rely on some pretty shakey assumptions about what the law allows them to do. So, they have assumed that because it generally is lawful for private individuals to take photos or videos of other private individuals, it is lawful for the Police to do likewise. Equally, if the Police are permitted under warrant to enter private land to search for physical evidence, then they aren't breaking any explicit law by leaving behind a video camera or motion-triggered camera to record what happens whilst they aren't there.

Not so, says the Supreme Court. Using video cameras or the like to record what people are doing will, if done in a way that breaches their reasonable expectation to privacy, constitutes a "search". And if that "search" is "unreasonable" because it is carried out unlawfully (as where a camera is put in place through a trespass on land) or for other reasons, it will be in breach of s. 21 of the New Zealand Bill of Rights Act 1990. And because the Police are subject to the New Zealand Bill of Rights Act 1990, this makes their use of such video or photographic surveillance unlawful.

The result is that a bunch of the physical evidence gathered by the Police was unlawfully obtained (because there was no valid warrant authorising them to enter Tuhoe land to get it), and most of the video and photographic evidence also was unlawful (as the Police could not get authority to gather this, and so it was an unreasonable search).

However, just because the Police have acted unlawfully when getting evidence does not mean that it cannot be used in court. Rather, under the Evidence Act 2006, s. 30, the question whether it can be used or not is a balancing one for the court. Against using it is the fact that the Police ought to obey the law and not be "rewarded" for breaches of the rules that govern their activities. In favour of using it are a bunch of factors like the seriousness of the alleged offences, the extent of the breach of the law, whether any other way of getting evidence was available, and the like.

Applying this balancing test, the Supreme Court split on what should happen to the evidence. Two judges would have excluded all the evidence against everyone. Two judges would have allowed all the evidence against everyone. And one judge thought almost all the unlawfully gathered evidence should be excluded for the 13 defendants facing the lower-scale Arms Act offences, but allowed for the 4 facing more serious membership of a criminal organisation offences. So that last position became the Court's ruling - meaning that the charges against the 13 got dropped as there is no longer any real evidence against them that can be used in court.

Now - what do we make of all this? That question largely depends on how  well disposed you are towards the Police.

If you are inclined to give them a pass, then you would say that faced with a potentially serious but indeterminate threat the Police did their best to balance the need to find out what was going on with the legal limits on their powers. They sought warrants for the physical intrusion on to Tuhoe land - warrants that failed on what is really a technicality. And while they knew these warrants could not authorise the filming of suspects, this is a pretty common investigative technique which had never been explicitly prohibited ... so it was reasonable to assume it was OK to do it here.

However, at least a some members of the Supreme Court were a little less understanding of the Police. Certainly the potential offences needed investigating. But the Police had worked out reasonably early on that there was no immediate likelihood of actual violence taking place. And further, the Police knew - or, at least, were pretty reckless - that the use of video and photographic surveillance was legally very dubious. However, they went ahead with it anyway, most probably in the hope that even if it was found to be unlawful the evidence could still be used under the courts' discretion in the Evidence Act. This is, to put it mildly, not best practice.

Furthermore, what of the real problem here - the fact that the Police can get legal authorisation to break into peoples' homes and rifle through their underwear drawers ... but not to put a camera in the bush to see who (allegedly) is shooting guns and throwing molotov cocktails? Well, the Supreme Court lays this directly at the feet of Parliament. It's been known since at least 2007 that there is this gap in the law. There's been a Search and Surveillance Bill sitting before the House for the past couple of years which would (amongst a raft of other changes) allow for such powers to be granted by warrant. But it seemingly has stalled whilst the Government sorts out some problems with it and gets on with passing laws that really matter - see here, or here.

Which perhaps is why the Government, sensitive to potential criticism on this point, has leapt to respond to the Supreme Court's decision. It will rush through law next week that effectively undoes the judgment for all cases except the 13 who won before the Supreme Court.

We don't know the full details of what is proposed, but note what the Government does not seem to be saying. It does not suggest putting in place specific guidelines as to when video or photographic evidence can be obtained - a requirement to get a specific warrant or the like. Instead, it seems to be proposing to set just aside the Supreme Court's view that gathering such evidence in and of itself constitutes an unreasonable search and thus is unlawful under the New Zealand Bill of Rights Act. And if it is not unlawful, then there's nothing to stop the Police from gathering evidence in this manner ... whenever and however they want.

So this isn't really about giving specific legal power to the Police to conduct video and photo surveillance under set legal limits. It rather is about removing a bar on the Police carrying out these actions ... and then leaving it up to the Police to decide when it is appropriate or necessary to do so.

Second, even if the ability to gather this form of evidence is believed to be necessary in the modern world - a point the Police seem very strong on, so I guess I'll believe them - it isn't clear why the Government is proposing to retrospectively validate the use of video and photo surveillance. The argument is, I guess, that the Police have used this technique in good faith to gather evidence against a bunch of criminals, and they shouldn't walk free just because the Supreme Court now has changed the rules.

Putting to one side whether the Supreme Court really has changed the rules here, the fact that such evidence may have been unlawfully obtained does not mean that it cannot be used in court. Remember the Evidence Act 2006, s. 30? That allows the courts to decide on a case-by-case basis whether or not to let such evidence in. And if the affected cases really are as serious as the Prime Minister suggests, you can be pretty sure the courts will allow it in.

So what the Government really seems to want to do here is short-circuit the courts' role in deciding if the Police's unauthorised (and, according to the Supreme Court, unlawful) use of video and photo surveillance should be allowed to stand as evidence. Instead, it will require such evidence to be let in - irrespective of whether or not it was obtained unlawfully in breach of the New Zealand Bill of Rights Act 1990 (which it wasn't ... because Parliament will deem that it wasn't).

Now - I get that the Supreme Court's decision probably made the Police's job a bit harder. And yes, there's always something a bit troubling about people we "know" are guilty of crimes being able to escape punishment because of legal "technicalities". However, the law is meant to be there to constrain power - to put restrictions on those who govern us (as well as those who enforce the rules those who govern us create). And the courts are there to provide interpretations of the law independent of those who govern us (or enforce their rules), to ensure that the law has some meaning other than that which is most convenient to them.

But if that law, as interpreted by the courts, gets dumped whenever it happens to be inconvenient to those who govern us (or those who enforce their rules), then what is its point?

[Update: Having read my take on things, may I now suggest you go to Dean Knight's blog and read a far superior, better articulated and trenchantly critical take on the case ... !]