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.

Comments (18)

by Dean Knight on September 21, 2011
Dean Knight

Indeed. A sensible way forward. Great work.

It's why it so important that time is given to reflect on the detail. I am still trying to work out what legislation which "freezes" the law as it stood before a decision was released would even look like...

One could have some fun promoting the old-fashioned declaratory approach to judging - ie the law just is, and it's the job of the judges to find it out (rather than make it)...

by Claire Browning on September 21, 2011
Claire Browning

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.

Well, somebody had to say it. I really didn't want it to be me.

That Bill is also ferociously opposed, by (most of) the very same people so incensed by the latest thing, which as you note is why it became bogged down - for its proposal to extend in some respects search and surveillance powers, whilst codifying, clarifying and better regulating them in many other ways, including the one you name.

You have to wonder. Well, I do. Is this the monumental cock-up that it seems ... or a sly political move. Another Key victory, if you will, where the man comes through the middle and saves the political day. I can't see how the collateral damage could be worth it ... but still.

by mickysavage on September 21, 2011
mickysavage

I am sure that the Beehive are busily going through the Labour Party letter outlining the four parts of the Search and Surveillance Bill which it opposed.  If the provisions you mention were not opposed by Labour then a quick cut and paste into a bill could work.  And it would have gone through a select committee process so would tick most of the boxes.

 

The problem will still be that the changes are intended to be retrospective and Labout MUST oppose this.  I appreciate that only Law lecturers and lawyers get incensed by these sorts of issues but backdating the effect would be appalling.  Why have laws and a judiciary if the Government can by fiat backdate law changes affecting fundamental rights?  And why should reckless if not illegal behaviour by the police receive retrospective blanket validation?

 

 

by Deborah Coddington on September 21, 2011
Deborah Coddington

Andrew - Was the Evidence Act the reason why the footage obtained by the television journalist (I think, from memory, Melanie Reid) who wired up a former victim of Morgan Fahey, allowed to be used against him in the case? Because in the end it was what convicted him. Do you remember? There was a huge legal argument about it.

by Andrew Geddis on September 21, 2011
Andrew Geddis

Claire,

Accepted ... as I say, there is a debate on whether or not the Police should have these powers (as well as a bigger debate over the amount of power the Search & Surveillance Bill gives to a range of enforcement agencies other than the Police). I guess my position is if it is thought necessary that the Police should be able to covertly video, then it is better that they do so under a system of positive authorisation by warrant, rather than under a situation where they can do so at will because nothing in law prevents them from doing so. And as the Search and Surveillance Bill already has a proposed structure for granting such warrants that has had a fair bit of scrutiny, this could be used as a temporary patch (for the Police only) until such time as the full legislation has all its kinks satisfactorily worked out.

I guess I'm being pragmatic enough to say I'd rather see this happen than that the Government twists ACT's arm (or bullies Labour) into simply undoing the Supreme Court's ruling so as to "stop criminals getting away with it".

Deborah,

Sorry - can't help on that point. Fortunately, Pundit readers are a smart and well informed lot, so expect someone to come along shortly who can (say "Graeme Edgeler" three times, and he will appear ...).

by on September 21, 2011
Anonymous

Your point is well made and in my view a principled balanced way forward.  What I can't work out is how this can be claimed to be some sort of surprise.  According to the SC (para 267) the Court of Appeal had said in 1997 that a warrant couldn't be obtained for filming. 

by on September 21, 2011
Anonymous

I think we need an honest discussion about what type of cases are actually being referred to here (the past 50 and ongoing 40).  Let's have some examples of the actual situations that have/could occur if the SC judgement is allowed to stand.

Based on my own firsthand knowledge of this widespread illegal tactic by the police, it would appear to mostly apply to drug cases.  I can think of the undercover sting against hydroponic shops where they filmed employees being entrapped into saying the products they sold could be used to grow cannabis (Undercover: 'my mom is dying of cancer and I really need to grow some medical marijuana, please tell me this stuff you just sold me will work'). 

The people involved in those prosecutions, who weren't just intimidated into hopping on the conveyor belt, are still before the courts and significant personal and business assets are being sought for forfieture (valued over NZ$ 1 million).  Methinks this is one of the cases they are referring to (if not 10). 

According to the Law Commssion's review of the Misuse of Drugs Act, personal use of cannabis and 'social dealing' should not be considered a 'serious crime', but you can bet the police have framed 'participating in an organised crminal group' (multiple employees from the Switched On chain were all entrapped in different cities) and 'drug manufacture' (cultivating a few cannabis plants for personal use) as serious enough to invoke the Evidence Act. 

However if the seriousness of these acts is challenged then the Police might have wasted a lot of tax dollars for nothing, unless of course the law is changed retrospectively to allow the police to decide what they are allowd to do and when.

by on September 21, 2011
Anonymous

I'd be happy to be corrected if I am on the wrong track with my above comment

by Graeme Edgeler on September 21, 2011
Graeme Edgeler

Deborah, it was somewhat before my legal career started (and, I think before my primary schooling ended), so I can't claim a familiarity with the case, but I would guess "becuase it wasn't illegal". I don't know whether it was video or audio recording, but ordinary people are allowed to do that (in the case of audio recording, as long as one of the participants knows it's being recorded).

And as Greg O'Connor has repeatedly pointed out, it is perfectly lawful for anyone to go onto a property and leave a camera there (as long as they don't commit a trespass when going there). That is what he's been saying, right?

by on September 21, 2011
Anonymous

Andrew

I think Claire has hit the nail on the head here, and I think you are playing right into Key's hands.

The Government has wanted to give the police these powers since they were first elected.  However, it has not been able to gather enough support from other parties to pass the legislation. For good reason, these powers involve a serious infringement on civil liberty and should not be exercised lightly.

Meanwhile, the police just started conducting the covert surveillance operations illegally.  Now they have been caught at it, they say "quelle surprise, we didn’t know it was unlawful."  And the Government says "quick, we must urgently and retrospectively give the police the power to conduct these operates or the streets will be filled with drug fiends, rapists and master criminals.”

As Tui would say, “Yeah, right”.

Hamed has not changed the law in respect of the legality or otherwise of these operations. As you point out, Hamed also makes it clear that despite the illegality the evidence gathered can be used in serious criminal cases. The bases on which the Government is seeking urgent, radical law reform are utterly untrue. It is a ploy to push through a controversial and hitherto unpopular part of its agenda and it appears to be working.

I agree with you that we want to arm the police with the best techniques to catch the bad guys. However, this particular technique is very vulnerable to abuse. Look to the multiple cases of abuse of new video surveillance powers in the UK since they were introduced there in response to 911.

The fact that the police, they now tell us, have been abusing the limits of their powers in this area in many cases over the last few years should strengthen the need for robust safeguards and strict limits. And that is not enough. The biggest problem is that we have never been willing in this country to introduce effective methods of dealing with bad police. So what if they don’t follow the safeguards and ignore the limits? The evidence gets in and the police involved get promoted. The first thing we should be calling for is for the police responsible for illegally spying on us for the last few years to be sacked, but no one appears to be suggesting any negative response against those police whatsoever.

Yes, give the police all the power they need and all the tools they need to catch the villains and keep us safe, but only if we also have a sound system of monitoring the use of those powers and an effective means of stopping and punishing abuse. Otherwise, the police become the villains.

Felix

by Graeme Edgeler on September 21, 2011
Graeme Edgeler

The Government has wanted to give the police these powers since they were first elected.  However, it has not been able to gather enough support from other parties to pass the legislation. For good reason, these powers involve a serious infringement on civil liberty and should not be exercised lightly.

That's an interesting theory, Felix, but the powers to conduct video surveillance as contained in the Search and Surveillance Bill have broad Parliamentary support. It's basically only the extension of SFO powers to police that is holding things up.

by on September 22, 2011
Anonymous

Graeme, that was the objection stated in Labour's minority report.  However, the original Bill was broadly opposed for failure to protect civil liberties. While it was significantly modified to try to address those concerns I do not think that it is clear that those modifications have successfully placated enough people.  The Greens still explicitly oppose the Bill. Individuals in two other parties have expressed significant misgivings to me about the Bill in its revised state.  It would surprise me if the Maori Party would support it without further work to make sure it is not the vehicle for future Operation 8 style fiascos. Do you have better inside knowledge than me on where all the MPs stand, or are you basing that statement only on the select committee reports?

by on September 22, 2011
Anonymous

Ah, I see this from Stuff "Labour's justice spokesman Charles Chauvel today released a letter Labour wrote to the Government last year confirming it would support the passing of the Search and Surveillance Bill with three amendments which did not relate to covert filming."  So you are right Graeme and I should learn not to trust politicians.

Charles, what are you and the Labour Party thinking?  You (and most of the NZ legal fraternity) raised valid concerns about this Bill that have not been addressed.  4A has been inserted to say that the rules have been drafted to recognise the importance of the rights in the Bill of Rights, but the rules themselves haven't been amended so that they actually do recognise those rights.  It would be an easy enough thing to do if you and the Government were genuine about wanting to do it.  Two simple examples: (1) expressly require the judge to take human rights considerations into account when deciding whether a warrant should be issued; and (2) require (as they do in the US) the police to exhaust non-invasive investigatory techniques before resorting to invasive ones.

by Tim Watkin on September 22, 2011
Tim Watkin

It seems Chris Finlayson is "open" to your solution, Andrew. Although he also says "at the moment I think nothing". Which is a bit worrying, really!

by on September 22, 2011
Anonymous

For those who haven't already read it, the draft bill has been posted on the Red Alert blog: http://blog.labour.org.nz/index.php/2011/09/21/surveillance-bill-letter-...

by Ian MacKay on September 22, 2011
Ian MacKay

"and in NZ, everything is lawful until a specific law says it isn't."

Many years ago a man in Dunedin wandered the streets with a sausage hanging out of his fly. The police said at the time that they could not find anything in law that they could use for a prosecution. Therfore it was not unlawful.

I deeply resent the retrospective element of the "solution."

by Tim Watkin on September 22, 2011
Tim Watkin

Andrew, a few questions... The government keeps saying it merely wants to put the law back to the way it was. Do you accept that's what would happen?

It says that the already pending cases – 40 odd – would probably be ok in the courts as the police acted in good faith, but the other 50 or so in which cameras have been used would be tossed out because the courts will from now on regard any filming as illegal. The Supreme Court case, National says, does not set a precedent that film will still be ok in serious cases because the exceptions for the Urewera 4 are very case specific and based in particular facts. Right?

And is it safe to assume that these 50 cases that would now have to be thrown out unless police were given retrospective permission would involve the most serious criminals – mostly drugs – because it's only worth the hassle and cost of cameras, warrants, covert surveillance etc in the most serious cases?

That what I'm now calling 'the Geddis solution', it's been said, won't work because of the ways laws link with various other laws and a few clauses on their own aren't sufficient?

by Andrew Geddis on September 23, 2011
Andrew Geddis

Tim,

I think that saying "all covert video surveillance is lawful" actually would extend the potential scope of its use by the Police. No court has ever said that the Police can use covert video surveillance  any time they lawfully can carry out "searches" ... the most that has been said is that certain uses of covert video surveillance are not unlawful, because they were not so intrusive as to amount to unreasonable searches under the NZ Bill of Rights Act. While the Supreme Court now has said that some kinds of covert video surveillance ARE unlawful, this is simply drawing a line that everyone knew must exist ... even if no-one knew exactly where it was.  Rubbing that line out doesn't "return the law" to where it was - it rather creates a greater power than previously existed.

What then is the effect of the Supreme Court's decision? Pending cases (where the evidence has already been gathered) can, as repeatedly noted, be dealt with under the Court's discretion in the Evidence Act if it turns out evidence was unlawfully gathered (which is not the case for every covert use of video surveillance, even after the Supreme Court's decision). This requires a case-by-case balancing, but if the charges are serious, if the evidence is of great value, and if the Police acted in good faith it likely will stand. However, current investigations are a problem, because the Police cannot now use an investigative tool they know to be unlawful (and if they do use it, the courts are very, very likely to throw out the evidence gathered). So, what to do about that?

One approach is to do nothing and wait until Parliament gets around to resolving this whole issue next term. This would mean the Police could not use some forms of covert video surveillance (those which constitute an "unreasonable search" under the NZ Bill of Rights Act) until then ... requiring them to use other investigative methods to detect crime and gather evidence (like they did before the technology was available).

The second approach is the Government's - to apply a blanket validation to covert video surveillance in the past and for one year to come. This would effectively give the Police (and all other investigative/enforcement bodies, note!) a complete discretion as to when and how to use this investigative technique ... and no matter how intrusive or extensive its use, or the reasons for its use, the courts would have to accept the evidence produced.

The third approach ("the Geddis solution") is to provide a legal mechanism by which positive authority can be given for the use of covert video surveillance that otherwise would be unlawful (as an "unreasonable search" under the NZ Bill of Rights Act) - by importing the relevant provisions from the Search and Surveillance Bill. I accept that this may be ungainly, and may need tweaking to avoid the problem of "linking with other laws". However, such a warrant regime presently exists for "interception devices" (i.e. bugging phones/rooms/etc to hear what people are saying) under the Crimes Act 1961, s.312A-Q ... so I'm not convinced problems are insurmountable.

Anyway - them's the choices. I note there is no perfect solution to this problem ... there's only a least worst one. And it may be that the Government's proposal is the least worst one we've got on the table. I'm just glad it isn't me who has to make that call!

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