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Video camera surveillance and the Urewera defendants

By Steven | September 23, 2011

I’ve been spending spare moments in the last few days trying to get my head around the Supreme Court’s decision (available here; it’s R v Hamed).

I’m not sure I really understand it. But then, that puts me in good company: Attorney-General Chris Finlayson and the Police Association’s Greg O’Connor don’t seem to understand it either.

What I’m really interested in is whether the decision changes the law in such an unexpected and adverse way that the police need a quick-fix law to ensure that they can operate effectively (and then, whether the quick-fix law National is proposing (a) solves the problem and (b) doesn’t grant police too wide a licence to invade our privacy).

I don’t know the answer to those questions. But here’s the thing I keep coming back to. Here’s the power the police are after. It’s the power National wants to give them. It’s the power they thought they had under the old law. It’s the power they’ve apparently been using for years. It’s the power they think the Supreme Court has stripped them of. It’s the power they say they are using in 50 current operations and relying on in 40 prosecutions. It’s a power, as Greg O’Connor keeps saying, for police to do what anybody else could do, since everybody is allowed to do what isn’t specifically prohibited by law.

Here’s that power: it’s the power to go on to someone’s land without telling them and instal a hidden camera, pursuant to a warrant that doesn’t actually authorise the camera to be installed. That’s because our search warrant laws, as the Law Commission has pointed out, let police apply to be given permission to search for things, but not to instal cameras.

Why did police think they could do something that invasive without specific provision in the warrant? Because the warrant allowed them to be on the land. It meant they weren’t trespassers. And once on the land, they could do what the warrant allowed them to do (search and seize particular evidence) and anything else reasonably incidental (look around, take photos, and, um, install video cameras). Back to O’Connor: the police can do anything that anyone else is allowed to do. And the law doesn’t say anyone needs a warrant to install cameras. Is this starting to sound like he’s on another planet? It does to me.

A couple of Supreme Court judges seemed astonished that the police didn’t even take legal advice on this issue before dealing with the Urewera warrants. I’m guessing that’s because it had simply become standard practice. We should note that the police did disclose to the warrant-issuer that they planned to put up cameras. That’s admirable. But it really makes you wonder why more questions weren’t asked about their power to do so.

O’Connor is fond of citing the cases of R v Fraser and R v Gardiner, as if those cases authorised installation of hidden cameras on someone’s private land during the execution of a warrant, and as if the Supreme Court has – shockingly – overturned them. But those cases didn’t say that. Both involved video surveillance of land from outside, with the consent of a neighbour. It makes a bit more sense, in that context, to say that the police don’t need special authorisation to do what other people can do. (The courts in those cases left open the question of whether that sort of behaviour amounted to a search, saying that if it was, it wasn’t an unreasonable one and therefore didn’t breach the Bill of Rights).

That strikes me as thin gruel for a proposition that I think many people would find surprising: that the police had power to instal hidden cameras in our houses, just because they may have had the right to be there for some other purpose.

National’s fix would retrospectively validate this, and more. It apparently renders all uses of hidden cameras associated with a search – very broadly defined, and not limited to searches with warrants – lawful. The fix also says such use of hidden cameras (including their positioning – in your bedroom, for example), would not by itself be grounds to argue that any search was unreasonable under the Bill of Rights Act.

Like pretty much everyone else, I’m not opposed to the police being given the powers they need to catch the bad guys. Like pretty much everyone else (I hope), I’m a bit suspicious of wide and invasive powers and want to be sure that they’re properly justified and adequately supervised. I’m not reassured here.

Like I say, I’m still coming to grips with the decision. Perhaps I’m missing something.

For what it’s worth, I think the decision to read is Blanchard J’s. Three other judges for the most part accept his analysis on the issues I’m talking about. I think some of the discussion of this case has got sidetracked by a focus on the Chief Justice’s decision, which is first, but which hasn’t carried the court.

PS. I recommend that you read Dean Knight (and here) and Andrew Geddis (and here and here) rather than listening to Greg O’Connor and Chris Finlayson.

Topics: NZ Bill of Rights Act | 7 Comments »

7 Responses to “Video camera surveillance and the Urewera defendants”

  1. FelixGeiringer Says:
    September 24th, 2011 at 12:55 am

    Nice post Steven.

    The SC decision in Hamed did not change the law of NZ. It was decided by the majority on very orthodox bases. A clear explanation of the fallacy of suggesting that it in some way overrode Gardiner or Fraser is set out in Dean’s next post here – http://www.laws179.co.nz/2011/09/covert-surveillance-if-it-aint-unlawful.html.

    The other suggestion used to justify the emergency legislation is that without it serious criminals may escape justice. Many people have pointed out the problem with this claim. Section 30 of the Evidence Act allows courts to admit evidence even if it has been illegally or improperly obtained. Essentially the courts must balance the extent of the impropriety against seriousness of the crime and make a decision that protects an “effective and credible system of justice.” Indeed, the SC in Hamed admitted all of the evidence against the defendants in that case who had been charged with serious offences.

    Why then are the Government and the Police insisting that this emergency legislation is required? The draft Bill and the correspondence from the Attorney-General that accompanies it are very enlightening. Labour have put these on the web here – http://blog.labour.org.nz/wp-content/uploads/2011/09/Draft-Bill.pdf.

    The Bill deems all covert video camera surveillance put in place during an otherwise lawful search to be lawful and reasonable regardless of the particular circumstances of the case. The Attorney-General tells us why this is necessary, instead of just relying on s 30, in paragraph 6 of his 21 September 2011 letter to Charles Chauvel. It is because “in cases where there was a high degree of expected privacy and other investigative techniques were available (however difficult to deploy) the risk of exclusion is much higher than it was in respect of Operation 8.”

    Apart from the “however difficult to deploy” bit, this is a fair summation of the law as it is and as, I would say, it should be. The “however difficult” bit is wrong because actually the courts have never required the police to show that other methods were impossible, just impractical. So, the argument boils down to, we need this legislation because in other cases we have infringed people’s rights to a much greater degree and with far less justification and the evidence might therefore be excluded.

    I hope your readers remember that parliament is being asked here to give a blanket approval of all of the police’s illegal actions without being told what those actions are. It might also be useful to remember that this Bill covers lawful warrant-less searches, such as the police might undertake under s 18(2) of the Misuse of Drugs Act. That gives the police to enter and search premises without a warrant where the police have reasonable grounds to believe that illegal substances are in the premises in breach of the Act. As I read the Bill, if the police instead of entering and searching, enter and place hidden video cameras in, such a place then that will be deemed lawful.

    That’s a pretty enormous power. If the police believe on reasonable grounds that you have a joint in your house then it will be deemed lawful for them to have come into your house and install hidden video cameras, even in your bedroom, even if they had no good reason for doing so.

    That may sound like an extreme scenario. I make no apologies for that. I’m not trying to be alarmist, but this is the important difference between the law the Government is proposing – an absolute blanket legalisation of police action – and the law we already have – a balancing test implemented by the courts. If the infringement is small, the justification for the infringement is reasonable and the case is serious then the evidence ALREADY goes in. But if the police have behaved flagrantly when they didn’t need to in cases that do not justify it then the evidence will be thrown out and so it should be. Everything in the middle will be decided on a case-by-case basis by the judges (who are also members of society with as little interest in letting criminals go free as any of us).

    Felix

    [By way of disclosure of interest, I acted for one of the Operation 8 accused, but I was not directly involved in the Hamed application decided by the Supreme Court.]

  2. Graeme Edgeler Says:
    September 26th, 2011 at 5:50 pm

    Steven:

    The fix also says such use of hidden cameras (including their positioning – in your bedroom, for example), would not by itself be grounds to argue that any search was unreasonable under the Bill of Rights Act.

    & Felix:

    The Bill deems all covert video camera surveillance put in place during an otherwise lawful search to be lawful and reasonable regardless of the particular circumstances of the case.

    If you’re reading the same draft bill as I am, then I don’t see how you can reach the conclusion that it will declare reasonable all video searches.

    Clause 5(2)(b) states that the mere fact that there was video surveillance will not be enough, by itself to render a search unreasonable, but I do not see that it will be deemed reasonable regardless of the circumstances of the case, or irrespective of the particular use (e.g. for a massive length of time, in a bedroom or bathroom etc.).

    Ordinary assessments of reasonableness will still be able to be made, the courts won’t be able to say “you placed a video, therefore the search is unlawful” and they won’t be able to say “you placed a video, therefore the search is unreasonable”, but they’ll be able to say “you placed a video in someone’s bedroom after getting a warrant to search for stolen property: what were you thinking?”

  3. Steven Says:
    September 26th, 2011 at 6:39 pm

    Hmmm. Then perhaps we’re looking at different drafts. In mine, the definition of “use” of a surveillance camera includes its positioning, installation, maintenance and removal. None of those can render a hidden camera unreasonable. Yes, assessments of other factors might render a use unreasonable, such as – perhaps – length of time. But the most objectionable element of a hidden camera use (and it’s the one your examples focus on) is positioning.

  4. Graeme Edgeler Says:
    September 26th, 2011 at 7:17 pm

    No. Same draft. I just think I’m taking a narrower interpretation of positioning than you are.

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