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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.
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