Too many problems, why am I here?

We are told the Supreme Court's ruling on the use of covert video surveillance has caused a major headache for the Police. Let me fix that for you.

My last post set out the Supreme Court's decision on the use of secretly filmed evidence against those accused of participating in the Urewera "training camps"/"terror group"/"consciousness raising sessions" (or whatever you wish to term them). It then finished by noting that the Police regard this decision as such an impediment to doing their job that the Government has to rush through legislation to set it aside for not only the future cases, but past cases also.

Lots of folks have since come forward to say that this is a bad idea. Quite right, too.

With regards the retrospective nature of the change, I honestly can't see why this is even being contemplated. John Key's argument for it is that without the change, some "very serious criminals" will go free. But that seems highly unlikely, for this reason.

There may well be some cases - the number quoted is 40 - presently before the courts in which covert video surveillance evidence is to be used ... evidence that the Supreme Court has said is unlawful. But just because evidence was unlawfully obtained does not mean that it cannot be relied on in court! Under the Evidence Act 2006, s.30, the courts have a discretion whether or not to allow such evidence to be admitted. And the Supreme Court itself exercised this discretion to allow the Police's unlawfully obtained video evidence to stand in the cases of those four defendants facing the most serious charges.

So any claim that the Supreme Court's ruling means "very serious criminals" presently facing trial inevitably will go free is, with all due respect to the Prime Minister, a lot of hokum. Sure, there may be some (likely very few) cases in which a court decides that the Police's unlawful action in gathering video evidence is not balanced by the seriousness of the charges or the importance of the information gathered ... but that's the cost of having a police force that is bound by law. They are, after all, the good guys who have to respect the law and accept it when the rules go against them - that's what gives them the moral authority to do their jobs!

That gets rid of the issue of a retrospective law change - you don't need to do it because the courts can manage the question of what to do with evidence in current trials, so just let them get on with doing so.

What, though, of current or future Police investigations where they may wish to use video surveillance to gather evidence? Well, the Supreme Court ruling may be a problem here, because having been told in no uncertain terms that they can't do this (at least in certain circumstances), the Police have to stop doing it. Or, rather, if they carry on doing it anyway they will knowingly be acting illegally - and that significantly increases the chance the courts will throw out any resulting evidence they gather.

That then raises the question - should the Police have this investigative capability at all? I note that there is not universal agreement on this. The Green Party, for instance, thinks the Police do not need it. The Police are adamant that they do - although when I hear Greg O'Connor telling me this, it immediately makes me doubt the claim.

(Incidentally - why is Greg O'Connor regarded as a venerable authority on the issue of what legal powers the Police need to carry out their job? Isn't it like having the President of the Tertiary Education Union proclaim on the level of salaries required to ensure an internationally competitive tertiary sector in New Zealand? A point of view, sure ... but really the one you would trust as providing an objective, balanced view of the issue?)

That said, and it may just be that I've just seen too many episodes of The Wire, I tend toward the "let the Police do it" point of view - with qualifications. Those are, of course, that the power be quite tightly restricted and only used when authorised by someone outside of the Police force. So how to achieve this?

Well, the Government's proposal won't. All setting aside the Supreme Court's decision will do is remove the legal bar on using video surveillance imposed by the New Zealand Bill of Rights Act 1990. And without a legal bar in place, the use of video surveillance will be lawful (as there's nothing to say it is not lawful ... and in NZ, everything is lawful until a specific law says it isn't). And if it is lawful, then the Police can do it as and when they think necessary.

That's over-egging things a bit, admittedly. For instance, the Police couldn't secretly break into your house without any legal authorisation just to stick a video camera in your living room. But ... if they've secretly entered your house under a valid search warrant to look for evidence, and then they happen to leave a video camera there when they leave, have they broken the law? What about if they get your neighbour to agree to their putting a video camera in a bush on your fenceline, aimed straight through your bedroom window? That action wouldn't require any sort of warrant at all - because what law would prevent it?

So, I think the Government's proposal to return to the "pre-Supreme Court judgment status quo" is a bad one, because it would leave decisions about how and when to use covert video surveillance entirely in the hands of the Police. And while I can see why some power to conduct such surveillance may be needed, that doesn't mean I think the Police alone should get to decide when and how that power will get used.

So here's my suggestion on how to fix this problem. At the moment there is sitting before the House the Search and Surveillance Bill 2009. It got bogged down in disputes about the extent of the powers it confers, and who it confers these on, which is why it hasn't passed into law yet. But in that Bill are a bunch of provisions that would allow the courts to give out "surveillance device warrants" where covert video (or other electronic) surveillance is thought necessary. The Bill also puts restrictions on when these can be asked for, and how their use gets overseen. These provisions have been through select committee, and so have had something by the way of scrutiny already.

So, why not take these particular provisions (clauses 42AA to 61) as well as relevant definitions and put them into the Summary Proceedings Act 1957 as a temporary stop gap until the full Search and Surveillance Act passes in the next parliamentary term? The Government could introduce this amendment next Tuesday, then send it for a very brief select committee hearing to get comment from expert parties (as happened with the second emergency Earthquake Act) before passing it through the final stages before Parliament rises for the election. The Police could then apply for warrants to continue their existing investigations, or to begin new ones - and the need for covert video surveillance could be assessed by a judge.

That seems to me the preferable way to proceed - if, indeed, anything needs to be done here at all. Certainly, it would be far preferable to the Government's proposal of pretending the Supreme Court has not spoken at all.