By Steven | October 4, 2011
Apparently, Police Minister Judith Collins has a law degree. That was not evident during her performance on Morning Report today. Was she deliberately misleading us, or did she simply not know what she was talking about?
Actually, video surveillance has been used by the police with the support of the Court of Appeal for around 15 years…
[Police] have always felt that their actions were legal because they have been supported by the Court of Appeal time and time again in the last 15 years.
Bollocks. The first time the Court of Appeal ruled clearly that search warrants authorised video surveillance was on 19 November last year, in the Ureweras case. That finding - which the Court of Appeal said the Crown didn’t “really” argue for - was overturned by the Supreme Court about nine months later.
Let’s stretch a point and note that about a month before that, on 7 October last year, the Court of Appeal had indicated that it thought there was a strong argument that search warrants authorised video surveillance, though it said there was “doubt” and noted some contrary arguments. Again, the Court of Appeal didn’t have the benefit of argument on the point, because the Crown conceded that the surveillance was not lawfully authorised.
Let’s just let that sink in. As recently as last year, the police’s own lawyers were not arguing for the power to do what the Police minister says the courts have long accepted they can.
The year or so since those two cases is the only period of time when the law clearly supported video surveillance on private land during a warranted search, and even then the police knew that the issue was an open one and shortly to be ruled on by the Supreme Court. The case was argued in May, and from what I can gather, the Crown lawyers took such a bath at that hearing that they could not have had any confidence of victory.
What Court of Appeal cases can the Minister be referring to? I can only guess that it’s cases like Gardiner and Fraser. In those cases, the Court of Appeal could indeed be said to have “supported” the police use of surveillance cameras. But those cameras were not used on the target’s land. They did not involve search warrants. They were “over-the-fence” surveillance from a neighbour’s window, with the permission of the neighbour. So they say nothing about any power to instal hidden cameras on someone’s land.
In fact, they don’t even say that police can always use over-the-fence surveillance. The Court of Appeal has explicitly left open the question of whether these might count as a search under the Bill of Rights. If they were pointed at a bathroom or bedroom, they might well violate the Bill of Rights protection against unreasonable search and seizure.
Later in the Morning Report interview, there was this exchange:
Q: But we will now get warrants which will specifically say that we’re using video surveillance in this case.
Collins: Well, actually, they’ve always had warrants.
Q: But the warrants didn’t actually cover this, did they, before?
Collins: Because the Supreme Court, by a majority decision of 3-2, said that the warrants, although they were issued by the courts, were not able to be issued by the courts for video surveillance because there was no specific law allowing video surveillance by the police or any other agency.
No, Minister, they have not “always had warrants”. There has never been a statutory power that expressly includes the power to conduct video surveillance. Anyway, as far as I know, up until October last year, the Court of Appeal cases that dealt with video surveillance did not involve search warrants at all. The cases were the over-the-fence variety. Again, those cases are largely unaffected by the Supreme Court’s decision, and didn’t need a fix-up law.
We should also note that the Bill does not provide for any warrants. It doesn’t create a new surveillance warrant regime - that option was rejected. Nor does it require police to tell this issuers of search warrants over private land that they plan to instal cameras, though that seems to be the expectation.
But the Minister’s most astonishing statement is the last one. The Supreme Court did not rule 3-2 that the warrants were “not able to be issued by the courts for video surveillance”. There was no thin majority for that ruling. All five of the Supreme Court judges said the warrants were not able to be issued by the courts for video surveillance.
Two of them found that, notwithstanding this illegality, the evidence should be allowed in. One found that, notwithstanding the illegality, some of the evidence should be allowed in. But that is a far cry from a ruling that the issuing of warrants was lawful.
It is hard to believe that the Minister of Police does not know the difference.
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