I realise repeated posts on the issue of hidden video cameras is not a sure-fire way to increase traffic to this blog, but here we go again ...

Please forgive yet another post on the topic of the Government's "fix" for the problem of hidden video camera surveillance, but I have been invited to give evidence tomorrow before the Justice & Electoral Committee on this matter and so I thought I'd take the opportunity to share my thoughts  (in the hope that if what I'm saying sounds completely silly, you can help save me from some embarrassment by telling me so in the comments section below). Consequently, this is going to be a somewhat dry and technical legal discussion.

Sorry about that.

I think we need to begin with problem definition - exactly what is it that the Supreme Court said in Hamed v R, and why is it a problem? The explanatory note to the Government's Bill states:

The Crown Law Office has advised that the decision of the Supreme Court in Hamed & Ors v R (the Hamed decision) has the following serious implications for government agencies:
(a) the use of covert video camera surveillance as part of the exercise of a search warrant (allowing entry onto private property) is unlawful:
(b) all covert video camera surveillance, including use of “over the fence” covert video camera surveillance (ie, non-trespassory surveillance, for example, by filming private activity from public land or from private property with the consent of the owner), is also likely to be held to be unlawful:
(c) if video camera surveillance is unlawful, it is likely to be found to be unreasonable and in breach of section 21 of the New Zealand Bill of Rights Act 1990. Any evidence obtained is at high risk of being held to be inadmissible:
(d) this will jeopardise both current prosecutions in cases already before the courts and ongoing investigations by the Police and other law enforcement agencies.


I have no problem with (a). But I honestly cannot see how Crown Law reaches the conclusion in (b) after reading Hamed. Yes, Elias CJ can be interpreted as saying that. But nothing in the other 4 judgments goes anywhere near saying "it is not lawful for the Police to covertly film in public/from consenting neighbour's land", or "the Police must have specific authority in law to covertly video people". What Blanchard J (with whom Gault J agrees) and Tipping J do indicate in obiter is that some forms of non-trespassory covert filming may constitute "unreasonable searches" and thus be unlawful as they breach the NZBORA, s.21 ... but this does not seem to be what Crown Law is saying (given (c) above - which also overstates matters, in my opinion). And, in any case, the Attorney-General is on record as saying that the intent of this Bill is that the courts may still determine that a given use of covert video surveillance is unreasonable in a NZBORA, s.21 sense - so I'm not sure that the proposed legislation would solve the issue in any case (if it is the NZBORA that Crown Law is worried about).

Consequently, I wonder if the Bill isn't an overreaction that is based on a misunderstanding of the Supreme Court's ruling ... the only "new" problem is that the Police (and other investigative agencies) have been definitively told that they cannot covertly video upon a suspect's land/property in any situation, as that will be both a trespass and (in almost every case) an unreasonable search. (I say this is a "new" problem because it seems pretty clear that the Police and Crown knew the practice is (at the least) of dubious legality - see, e.g., Hodgkinson v R [2010] NZCA 457 where the Crown conceded a search warrant could not lawfully authorise the trespassory planting of a camera, and while the Court of Appeal expressed "some doubt about that conclusion and consider that it is strongly arguable that a warrant can properly be issued to authorise unmanned video surveillance on a property in circumstances such as the present", it also recognised there were arguments either way and so continued on the basis the camera's use was unlawful).

Assuming that this (narrower) problem is still a real one, what then ought to be done about it? Here we may separate out past uses of covert video from prospective ones. The Bill's intent (at cl. 5(1)(a)) to retrospectively deem past covert filming "lawful" is (in my opinion) an unwarranted (no pun intended) intrusion into the judicial role.

  1. The Supreme Court's role as the final "declarer" of the law's meaning at any given point in time demands a degree of deference from Parliament - even if MPs would rather another, lower court's understanding of the law applied to existing and past cases they ought to respect the functioning of the judicial hierarchy and refrain from effectively promoting a lower court's judgment on the matter over a higher court's one.
  2. The claim that this decision is something of a bolt from the blue that has radically unsettled established understandings of the law is (with respect) pretty tenuous. No court before the Court of Appeal in Hamed had said that trespassory covert filming is lawful ... and the Supreme Court then said this decision was wrong in law. (Hodgkinson expressed some doubt on the matter, but hardly could be said to have resolved it.) The previous Court of Appeal rulings that covert videoing was permissible (Fraser and Gardiner) related to non-trespassory uses - which I do not think are affected very much at all by the Hamed ruling. So if the claim is "we always thought this was legal - until the Supreme Court hit us from left-field", I just don't buy it ... it smacks of a degree of wishful thinking on the part of the Police and the Government.
  3. The alleged consequences of the Supreme Court's decision - that "any evidence obtained [from the unexpectedly unlawful use of covert videoing] is at high risk of being held to be inadmissible" - flies in the face of the Evidence Act 2006, s.30 and its application by the judiciary. So, in Hamed itself the evidence against those accused of the more significant offences can still be used. In Hodgkinson, the court allowed the evidence obtained by video to stand. Admittedly, both of these cases related to "low privacy" surveillance - and in cases where cameras were used to intrude more directly into homes, etc the balance may be different. But, so what? If this intrusion was unlawful (and the Police knew it was somewhat dubious) why should it now be validated? Equally, if the evidence was gathered in a particularly intrusive way, then isn't it in any case highly likely to be an "unreasonable search" under NZBORA, s.21 ... and thus improperly gathered ... and thus subject to s.30 anyway?

Consequently, I can see no convincing justification for including a retrospective element to this proposed legislation.

Going forwards, then, how should the Police be given the power to use trespassory covert video surveillance (assuming this is a necessary and desirable power for them to have)? My preferred option would be a warrant-based system ... if the Police think they need to do it, then get a court to authorise it. The Attorney-General tells us that the suggested fix of importing the relevant sections from the Search and Surveillance Bill into the Summary Proceedings Act won't work - it would require too much work and fiddling to accomplish in the limited life of this Parliament. I assume he is right about this, as I have no way of saying he isn't. Another possibility, I suppose, is to graft "covert videoing" on to the "electronic interception warrants" that may be obtained under the Crimes Act and Misuse of Drugs Act ... but again I suspect there would be problems making the statutory regime work properly (to say nothing of the fact that this would then mean such warrants would be available for only a narrow range of offences).

If a warrant-based approach really will not work, then I suppose the Government's proposal is all that remains. This would deem covert videoing to be lawful (in cl.5(2) if part of a search which is properly warranted if trespassory or is non-trespassory (cl. 4, definition of "search"). That gets rid of the problem of trespass (as well as answers Elias CJ's point about needing authority to carry out any covert filming at all - but I don't see it as adding much to the other 4 judgments in Hamed). However, the Attorney-General claims that "unreasonable" uses of this lawful power (i.e. those that infringe on the right in s.21, NZBORA) are not touched and will remain unlawful - thus the absence of a s.7 report on the Bill. If this is the case, then I think the Government's Bill should say so explicitly ... perhaps include a general statement that nothing in the Bill is intended to limit any of the rights contained in the NZBORA or similar ... to remove the apparent contradiction between a given use of covert video being said to be not "of itself ... unlawful" (cl.5(2)) whilst also being unlawful because it is in breach of NZBORA, s.21.

There perhaps are two last points worth noting. First of all, much of what Blanchard and Gault JJ and Tipping J say in relation to what makes covert filming "unreasonable" remains good law - so there must still be real doubt about whether highly intrusive uses of video surveillance will be permitted in any given case, and certainly there would be grounds to challenge such uses after the fact. The actual impact of this Bill is thus quite limited (in spite of the rhetoric that both sides of the debate are using in relation to it). Second, the Bill has no restrictions on who may engage in covert video surveillance other than that their "search" must fall within the NZBORA s.3(b). Consequently, the non-trespassory use of covert video by all those exercising a public function, power or duty is "lawful", while the trespassory use of covert video under warrant by all those exercising a public function, power or duty is "lawful". I don't know enough about the various ways one can get a warrant to enter property, but it seems to me that this is an awfully big expansion of the powers of at least some investigative agencies ... is there a risk a nut is being opened with a sledgehammer here, or is the (implied) safeguard that "no unreasonable searches are allowed" sufficient to control the power?

Comments (19)

by Simon on September 27, 2011
Simon

Andrew, you are of course forgiven for writing another post on the Hamed bill. As Finlayson et al are obviously not preparing any intelligent analysis,  the public only have you Dean, Stephen, Felix and Rodney Harrison to provide a more reasoned view.

However...is there any point trying to prepare a "fix"? Or even in appearing at the Select Committee? Isn't Finlayson just going to drive through his odious objectionable bill in spite of whatever rational legal objections exist? Thats been this Government's track record.

Maybe if you go to the Select Committee you could wear a clown suit and explain you were unsure what to wear as you could not decide whether the process was a farce or a comedy or a tragedy.

by Tim Watkin on September 27, 2011
Tim Watkin

Picking up on your last point first, I'm not sure why this law needs to cover any other authority but the police. That seems to be the critical issue.

And I'm still put off by it being retrospective; it just seems to be taking liberties (literally). Surely they should err on the side of caution and be more conservative at this point, then let the more considered law sort it out next year. It seems bad law to open it up extensively in the short-term (without warrants etc), create an open-season for surveillance, and then if its reined in after the final bill, force the courts to deal with a more permissive short law, when the laws on either side of it are more restrained.

Perhaps one issue is to bring the sunset clause back a bit. Why a whole year? Why not put some pressure on themselves and have the temporary fix for only six months? There needs to be some restraint from somewhere – in time if not in practice.

by Tim Watkin on September 27, 2011
Tim Watkin

Oh, and good luck tomorrow!

by mickysavage on September 28, 2011
mickysavage

Very delicately put Tim.  I believe this presents a "constitutional crisis" because in my view the relationship between the Courts and Parliament will never be the same.

The very justification that is being advanced for retrospectivity, that the finding was a "bolt from the blue" was rubbished by the Court.  Elias sais "the film surveillance was undertaken deliberately without legal authority, in the knowledge that there was no lawful investigatory technique available to be used".  Blanchard said "[t]he police understood that the warrants did not authorise the video surveillance and that their conduct in relation to the video surveillance might well be legally questionable".  McGrath said "In the absence of specific legislation, the officer responsible for management of the investigation said it was decided that this was the best and most reasonable way to proceed".  In the High Court Winkelmann made a finding that the police continued to use surveillance cameras with the knowledge, at a senior level at least, that they had no lawful authority to do so.

The Government is, for what appears to me to be for purely political reasons, saying they are all wrong.  Should this bill pass I am afraid that things will never be the same.

by Ian MacKay on September 28, 2011
Ian MacKay

As a layman I can only glimpse the import of what you say Andrew.

Retospective? No thanks!

Warrantless? No thanks!

Open slather for police and others to Big Brother on private property? No thanks!

Up to you Andrew to speak for us little people.

(By the way weren't those undercover policemen who were bugging a suspects car, doing so on private property? One was later shot and killed on the footpath. Wonder if that was warranted?)

 

by on September 28, 2011
Anonymous

Public submissions are open until midnight tonight. http://www.scoop.co.nz/stories/PA1109/S00512/public-hearing-of-on-video-...

by on September 28, 2011
Anonymous

I am not a law geek but would urgently like some advice from a law geek on how this bill will affect my right to privacy and the rights of anyone else who happens to know/flat with/be related to someone who is under surveillance. I can understand covert video surveillance in areas where I might reasonably be expected to be seen by a member of the public. I can understand the need for trespass in order to search a property for 'things' related to a crime. However, installing a video camera in a private home feels like an extreme violation of my rights. If I visit my sister, should I expect to be recorded? Have I already been? Should I be more paranoid than I already am? How can anyone maintain a relationship in these circumstances? Do we have to hide in the bushes to have a personal conversation, or do I just have to accept that a stranger can listen and laugh at the private details of my life?

I burst into tears as I wrote this and I still can't stop crying - and I don't cry. Covert surveillance affects far more people that just the suspects. I have lived with this for 4 years and no one should have to go through this without incredibly good reason.

by on September 28, 2011
Anonymous

And now I have calmed down...some more questions. If my sister came to stay with me for an extended period of time, and were under surveillance (the uncertainty creates its own sense of paranoia, tension and doubt), might my flat come under surveillance? What position would I be putting my flatmates in? What position are any flatmates in when covert video cameras may be placed in their home? For me, this is not about evidence - as I think it unlikely that any footage of me could ever be used as evidence - but about my right to act and speak as I wish in my own home, or any private space, without intrusion by the State.

by donna on September 28, 2011
donna

Thank you, Andrew. Off to draft my submission now.

Along with others, i have real problems with the restrospectivity. Surely if the police were aware that their snooping was illegal then, just like the rest of us, they should have refrained. The law may be a bit gray in this area, but it seems this should be a reason for more caution, not less. And the whole Bill leaves hanging the bigger question of what, exactly, won't this government do to get rid of inconvenient problems?

by on September 28, 2011
Anonymous

Sorry about the overly emotional comments. What I wanted to ask was: What are my current rights to privacy in relation to audio surveillance? How does trespass currently relate to audio surveillance? Thanks.

by on September 28, 2011
Anonymous

Lucy

This is one of my many concerns with the S&S Bill.  There will be no requirement for the Police to inform the Judge of the potential impact on the privacy rights of third parties.  There will also be no obligation for the Judge deciding whether to grant a surveillance warrant to take such issues into account.

Felix

by on September 28, 2011
Anonymous

Thanks Felix. Can you tell me whether s21 of the BORA applies to third parties at all or is this a limitation to this right?

by on September 29, 2011
Anonymous

Lucy

Sorry for the slow reply.  Last night was spent writing a submission on the Bill (filed 10 minutes before the deadline of midnight).

All of BORA applies to everyone in NZ (and arguably some people outside of NZ).  Section 21 certainly applies to people who were not the Police's intended target.  The case establishing civil liability for breaches of BORA (Baigent's case) was about the Police searching the wrong house.  The owner of that wrong house won damages.

I do not know if anyone has mounted a claim on the basis that they were unreasonably caught up in a search aimed (accurately) at someone else.  However, I expect that such a case would turn on a balance between the extent of the invasion on the privicy of the third party and the strength of the justification for the search.

If the facts were favourable it would be an interfesting case to run.  If you think you have such a claim I would encourage you to discuss it with a lawyer (in person rather than on a public blog site).

Felix

by on September 29, 2011
Anonymous

Lucy

 

You are mixing up two forms of surveillance. Video is apparantly not allowed but audio has been for some time but only for serious offences and under a warrant. There is a discussion here http://www.scoop.co.nz/stories/HL0710/S00357.htm 

 

Police also have to destroy irrelevant information they have recorded. So any conversations you have that don't involve the criminal activity being investigated should not be retained or released to a wider audience.

by on September 29, 2011
Anonymous

@ Andrew

Just want to make a note of thanks for your ongoing engagement with non geek people like me in various net fora. It really improves the discussion and understanding.

One issue I was interested in was the expectation of privacy and the impact that had in terms of whether a search was reasonable. If you are undertaking activities covertly that you probably know are illegal, wouldn't your expectation of a right to privacy be lower or discounted? I never saw the concept discussed (might have slept through it), which I assume means the judges didn't think it an issue worthy of discussion so there is probably longstanding law around it. are you able to guide on that? 

by Andrew Geddis on September 29, 2011
Andrew Geddis

insider,

There may be others able to chip in better than me on this point, but my understanding is that expectations of privacy are assessed objectively; i.e. how would an ordinary (non-criminal) person feel about the degree of intrusion into their life/privacy that the videoing involves?

The problem with saying "crims can't expect privacy if they are being crims, so videoing crims isn't unreasonable (even if the same videoing of a non-crim would have been unreasonable)" is that there's no way to know before doing the search whether or not a person is a criminal. And the prohibition on unreasonable searches is there to stop the police intruding too far into anyone's life. So if the police can do the videoing and then after the fact say "they were crims, so the videoing was reasonable as privacy can't hide crime", the protection afforded to non-criminals is significantly diminished as it incentives the police doing it anyway.

At least, I think that's how it works. Anyone else know better?

by on September 30, 2011
Anonymous

thanks. I thought that would probably be the issue.  

by on September 30, 2011
Anonymous

Hopefully the submissions of the Law Society will have some effect, but this debate raises the question about why we have legal safeguards.  The debate has centred on an ill-defined number of current and future cases where the bad guys could get away with it.  There is more to it than that.   - it is not good guys versus bad guys, or criminals getting away.  At the heart of it is the role of the courts to balance the power of the state over the individual. 

Civil rights aren't inalienable in themselves, but over centuries, individuals have argued (and died in many cases; eg John Cooke who and established to rule that the Crown was subject to the law by prosecuting Charles I ) that the ability of the state to intefere in the lives of its citizens cannot be unrestricted.

Retrospective legislation to cover up a cock up by the Police is just the worst example of Police and Parliament colluding to increase the power of the state over its citizens.

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