Drugs - Search and Surveillance Act 2012

Question 1

Section 19 Search and Surveillance Act 2012

Answer 1

Power to SEARCH a person found in / on a place or vehicle if a search warrant has been obtained and the offence specified is one against the Misuse of Drugs Act 1975.

Question 2

Section 20 Search and Surveillance Act 2012

Answer 2

Power to ENTER and SEARCH a place or vehicle if he / she has
- RGTB that it is not practicable to obtain a warrant and that in that place of vehicle there is
- A controlled drug specified in schedule 1, a controlled drug specified in part 1 of schedule 2, a controlled drug specified in part 1 of schedule 3 and a precursor substance specified in part 3 schedule 4 MODA 1975 AND
- RGTS that an offence against the MODA75 has / is / will be committed AND
- RGTB if entry / search is not carried out CADD will occur.

Question 3

Section 21 Search and Surveillance Act 2012

Answer 3

SEARCH of a person found in a PLACE or VEHICLE subject to Section 20 Search and Surveillance Act 2012

Question 4

Section 22 Search and Surveillance Act 2012

Answer 4

Section 22 Search and Surveillance Act 2012

SEARCH a person WO warrant
-RGTB they are in possession of
- (i) A controlled drug specified in schedule 1
- (ii) A controlled drug specified in part 1 of schedule 2
- (iii) A controlled drug specified in part 1 of schedule 3
- (iv) A precursor substance specified in part 3 of schedule 4
AND
RGTS an offence against MODA75 has/is/will be committed

Question 5

Section 23 Search and Surveillance Act 2012

Answer 5

Number 23 “Inside me”

Internal search in relation to section 6, 7 and 11 MODA75

May require a medical practitioner to conduct an internal examination by way of
- X ray
- Manual or Visual examination through any body orifice

WHEN
- the person is under arrest for an offence against section 6, 7 or 11 of MODA75.
- The Constable has RGTB the person has secreted within his / her body any property
- (i) That may be evidence of the offence that the person is charged OR
- (ii) The possession of which constitutes any other offences against S6, 7 or 11 of MODA 75

Question 6

Section 48 Search and Surveillance Act 2012

Answer 6

Use of surveillance device without warrant in situations of emergency

Permitted only where the offence is:
- Punishably by 14 years imprisonment or more
- An Arms Act 1983 offence
- A Drug offence
- Likely to cause injury or serious property loss / damage and surveillance is necessary to prevent offending from being committed or continuing.
- Presenting risk to life and safety and surveillance is necessary as an emergency response

Question 7

Section 48(2)(e) Search and Surveillance Act 2012

Answer 7

Provisions for the emergency use of a surveillance device warrant in relation to drugs offences

The enforcement officer has:
- RGTS that an offence has / is / will be committed in relation two a controlled drug specified/described in schedule 1, part 1 of schedule 2, or part 1 of schedule 3 of the Misuse of Drugs Act 1975 or to a precursor substance specified in part 3 of schedule 4 AND
- RGTB that the use of the surveillance device would obtain EM in relation to that offence.

You MUST consider whether under section 48(1) you would be entitled to make an application for a surveillance device warrant and it is impracticable to obtain one at that time.

Question 8

Section 57 Search and Surveillance Act 2012

Answer 8

Admissibility of evidential material relevant to other offences

• If a surveillance device warrant has been authorised and it lawfully captures EM in relation to an offence that is not the offence in respect of which the warrant was issue BUT a SDW could have been issued or a surveillance device could have been LAWFULLY used, it will still be admissible

Question 9

Section 59 Search and Surveillance Act 2012 - Reporting requirements

Answer 9

This section sets out a requirement on the person who carries out the activities authorised by a surveillance device warrant to provide a written report to the issuing judge within 1 month after the expiry of the period for which the warrant is in force

Question 10

Section 61 Search and Surveillance Act 2012

Answer 10

This details the actions a judge may take on receipt of a SDW report includes giving direction as to the destruction or retention of the material obtained

Question 11

Section 64 Search and Surveillance Act 2012

Answer 11

Section 64 - can’t keep anymore

Disposal of surveillance data

Must ensure that raw surveillance data that is not retained in accordance with section 63 or as part of court record, be deleted

Question 12

Section 56 Search and Surveillance Act 2012

Answer 12

A surveillance device warrant may be carried out by:
- Any or all of the persons to whom it is directed
- Any assistant
- Who is called upon to help him / her carry out the activities
- Who at all times remains under the supervision of a person specified in para a

Question 13

Section 81 Search and Surveillance Act 2012

Answer 13

Searches or persons, places and vehicles relating to deliveries under section 12 of Misuse of Drugs Amendment Act 1978.

Question 14

What is the power to stop a vehicle to recover a package from a controlled delivery?

Answer 14

Section 121 Search and Surveillance Act 2012 - Power to stop a vehicle to exercise a statutory power.
A search warrant should be obtained for the vehicle, however if it is impractical then Section 81 of the Search and Surveillance Act 2012 can be used to execute a power of search.

Question 15

If a suspect from a controlled delivery is in a vehicle that no longer contains the parcel - what are your powers of stopping / searching?

Answer 15

If you want to arrest them you can exercise section 9 Search and Surveillance Act 2012 to stop the vehicle and arrest the occupant of the vehicle.

Searching will require a search warrant or other statutory power.

Question 16

Section 46 Search and Surveillance Act 2012

Answer 16

You must obtain a SDW:
- Using an interception device to intercept a private communication
- Use of a tracking device (except when installed for the purpose of ascertaining if something has been opened, tampered or otherwise dealt with) and the installation does not involve trespass
- Observation of private activity in private premises (and any recording of that activity)
- Use of a surveillance device that involves trespass
- Observation of private activity in the curtilage that exceeds 3 hours in a 24 hour period or 8 hours total (for an investigation or connected series)

Question 17

Section 47 Search and Surveillance Act 2012

Answer 17

You do not have to apply for a SDW when:
- An enforcement officer is lawfully in private premises and records what he / she observes / hears there (provided that they only record what they could see / hear without the use of a surveillance device)
- Covert audio recording of a voluntary oral communication between 2 or more persons made with consent of at least one of them.
- Activities carried out by the enforcement officers use of a surveillance device, if authorised under any enactment other than this Act.

Question 18

What is the criteria for issuing a surveillance device warrant?

Answer 18

There are:
- RGTS that an offence has / is / will be committed in respect of which this act authorises the officer to apply for a warrant to enter premises for the purpose of obtaining evidence AND
- RGTB that the use of a Surveillance Device will obtain information that is EM of the offence
- AND the provisions of S45 do not prevent the issuing of a SDW in these circumstances.

NOTE: A high standard of evidence is required.

Question 19

How long can surveillance data be retained?

Answer 19

If charges have been laid
- Until the conclusion of appeal proceedings
- The expiry of a period in which an appeal can be sought

No longer than three years if
- No charges have been laid
- The data is required for an ongoing investigation

A judge can extend this by no more than two years on application