Electronic Operations Flashcards
Evidential Material
In relation to an offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.
Private communication
(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b) does not include a communication of that kind occurring in circumstances in which any party to the communcation ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so
Interception device
(a) means any electronic, mechanica, electomagnetic, optical, or electo-optical instrument, apparatus, equpment or other device that is used or is capable of being used to intercept or record a private communcation (including a telecommunication); but
(b) doe snot include a hearing aid or similar device used to correct subnormal hearing of the use to no better than normal hearing.
Visual surveillance device
(a) means any electronic, mechanical, electromagnetic, optical, or electo-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but
(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
Surveillance Device
means a device that is any 1 or more of the following kinds of devices:
(a) an interception device
(b) a tracking device
(c) a visual surveillance device
Such a device assists and enhances your normal capabilities to carry out the surveillance:
- a visual surveillance device assists you to observe and/or record;
- an interception device assists you to hear and/or record;
- a tracking device assists you to locate a person or thing or ascertain whether anything has been handled.
Tracking Device
(a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
(i) the location of a thing or person
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but
(b) does not include a vehicle or other means of transport, such as a boat or helicopter.
Activities for which surveillance device warrant required
Search and Surveillance Act 2012, Section 46
Activities for which surveillance device warrant required
(1)
Except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:
(a)
use of an interception device to intercept a private communication:
(b)
use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods:
(c)
observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d)
use of a surveillance device that involves trespass to land or trespass to goods:
(e)
observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i)
3 hours in any 24-hour period; or
(ii)
8 hours in total.
Activities that do not require warrant
Search and Surveillance Act 2012, Section 47
Some activities that do not require warrant under this subpart
(1)
No warrant under this subpart is required by an enforcement officer for any 1 or more of the following activities:
(a)
the enforcement officer—
(i)
being lawfully in private premises; and
(ii)
recording what he or she observes or hears there (provided that the enforcement officer records only those matters that he or she could see or hear without the use of a surveillance device):
(b)
covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them:
(c)
activities carried out under an authorisation issued under Part 4 of the Intelligence and Security Act 2017:
(d)
activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act.
(2)
Subsection (1)(b) does not prevent an enforcement officer from applying for a warrant authorising covert audio recording in the circumstances set out in that subsection.
Surveillance device warrant need not be obtained for use of surveillance device in some situations of emergency or urgency
Search and Surveillance Act 2012, Section 48
Surveillance device warrant need not be obtained for use of surveillance device in some situations of emergency or urgency
(1)
An enforcement officer who is in any 1 or more of the situations set out in subsection (2) may use a surveillance device for a period not exceeding 48 hours from the time the surveillance device is first used without obtaining a surveillance device warrant, if—
(a)
he or she is entitled to apply for a surveillance device warrant in relation to those situations; but
(b)
obtaining a surveillance device warrant within the time in which it is proposed to undertake the surveillance is impracticable in the circumstances.
(2)
The situations are as follows:
(e)
the enforcement officer has reasonable grounds—
(i)
to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or 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 or described in Part 3 of Schedule 4 of that Act; and
(ii)
to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(f)
the enforcement officer has reasonable grounds—
(i)
to believe that a person is in possession of any 1 or more of the things described in section 81(2)(a) to (d); and
(ii)
to believe that use of the surveillance device is necessary to facilitate the thing’s seizure.
(3)
An enforcement officer using, or intending to use, a surveillance device in accordance with subsection (1) may do any or all of the following, using any force that is reasonable in the circumstances to do so, in order to install, maintain, or remove the surveillance device, or to access and use electricity to power the surveillance device:
(a)
enter any premises, area, or vehicle:
(b)
break open or interfere with any vehicle or other thing:
(c)
temporarily remove any vehicle or other thing from any place where it is found and return it to that place.
(4)
This section is subject to section 45.
Admissibility of evidential material relevant to other offences
Search and Surveillance Act 2012, Section 57
Admissibility of evidential material relevant to other offences
(1)
Subsection (2) applies if, in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using a surveillance device in relation to an offence, a person obtains any evidential material in relation to an offence—
(a)
that is not the offence in respect of which the warrant was issued or in respect of which the surveillance device was lawfully put into use, as the case requires; but
(b)
in respect of which a surveillance device warrant could have been issued or a surveillance device could have been lawfully used.
(2)
The evidential material referred to in subsection (1) is not inadmissible in criminal proceedings by reason only that the surveillance device warrant that authorised the activity that obtained the material was issued in respect of a different offence or, as the case requires, that the material was obtained from the use of a surveillance device that was put into use in respect of a different offence.
Conditions for issuing surveillance device warrant
Search and Surveillance Act 2012, Section 51
Conditions for issuing surveillance device warrant
The conditions for issuing a surveillance device warrant are that—
(a)
there are reasonable grounds—
(i)
to suspect that an offence has been committed, or is being committed, or will be committed in respect of which this Act or any enactment specified in column 2 of the Schedule authorises the enforcement officer to apply for a warrant to enter premises for the purpose of obtaining evidence about the suspected offence; and
(ii)
to believe that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence; and
(b)
the restrictions in section 45 do not prevent the issuing of a surveillance device warrant in the circumstances.
Informers
Evidence Act 2006, Section 64
Informers
(1)
An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.
(2)
A person is an informer for the purposes of this section if the person—
(a)
has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed; and
(b)
is not called as a witness by the prosecution to give evidence relating to that information.
(3)
An informer may be a member of the Police working undercover.
Application for surveillance device warrant
Search and Surveillance Act 2012, Section 49
Application for surveillance device warrant
(1)
An application for a surveillance device warrant may be made only by an enforcement officer, and must contain, in reasonable detail, the following particulars:
(a)
the name of the applicant:
(b)
the provision authorising the making of an application for a search warrant in respect of the suspected offence:
(c)
the grounds on which the application is made:
(d)
the suspected offence in relation to which the surveillance device warrant is sought:
(e)
the type of surveillance device to be used:
(f)
the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance:
(g)
a description of the evidential material believed to be able to be obtained by use of the surveillance device:
(h)
the period for which the warrant is sought.
(2)
If the enforcement officer cannot provide all the information required under subsection (1)(f) and (g), the application must instead state the circumstances in which the surveillance is proposed to be undertaken in enough detail to identify the parameters of, and objectives to be achieved by, the proposed use of the surveillance device.
(3)
The applicant must disclose in the application—
(a)
the details of any other applications for a search warrant or a surveillance device warrant that the applicant knows to have been made within the previous 3 months in respect of the person, place, vehicle, or other thing proposed as the object of the surveillance; and
(b)
the result of that application or those applications.
(4)
The applicant must, before making an application for a surveillance device warrant, make reasonable inquiries within the agency in which the applicant is employed or engaged for the purpose of complying with subsection (3).
(5)
Despite subsection (1), an application for a surveillance device warrant seeking authority to use visual trespass surveillance or an interception device may only be made by—
(a)
a constable; or
(b)
an enforcement officer employed or engaged by a law enforcement agency that has been approved by an Order in Council made under section 50.
Form and content of surveillance device warrant
Search and Surveillance Act 2012, Section 55
Form and content of surveillance device warrant
(1)
Every surveillance device warrant must—
(a)
be in the prescribed form, if any; and
(b)
be directed to every enforcement officer who has authority to carry out the activities authorised by the surveillance device warrant; and
(c)
specify a period, of no more than 60 days after the date on which the warrant is issued, for which it is in force; and
(d)
contain a condition that, in accordance with section 59, a surveillance device warrant report must be provided within 1 month after the expiry of the period for which the warrant is in force to the Judge who issues the warrant or, if that Judge is unable to act, to a Judge of the same court as the Judge who issues the warrant; and
(e)
contain a condition that the enforcement officer carrying out the activities authorised by the warrant must not use any communication obtained under the authority of the warrant unless the privilege is waived or its use is authorised by a Judge, if he or she has reasonable grounds to believe that the communication may be subject to a privilege specified in section 136.
(2)
A surveillance device warrant may be subject to any other conditions specified in the warrant that the Judge issuing it considers reasonable, including a requirement for inclusion of specified information in the surveillance device warrant report provided under section 59.
(3)
Every surveillance device warrant must also contain, in reasonable detail, the following particulars:
(a)
the name of the Judge issuing the warrant and the date of issue:
(b)
the provision authorising the making of an application for a search warrant in respect of the suspected offence:
(c)
the type of surveillance device the use of which the warrant authorises:
(d)
the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance:
(e)
the evidential material relating to the suspected offence that may be obtained by use of the surveillance device:
(f)
that an enforcement officer carrying out the activities authorised by the warrant may use any assistance that is reasonable in the circumstances:
(g)
that an enforcement officer who, while carrying out the activities authorised by the warrant, obtains the content of a telecommunication may direct the relevant network operator to provide call associated data (as defined in section 3 of the Telecommunications (Interception Capability and Security) Act 2013) that is—
(i)
a document within the meaning of section 70; and
(ii)
related to that telecommunication:
(h)
that, subject to section 45, an enforcement officer carrying out the activities authorised by the warrant may do any or all of the following, using any force that is reasonable in the circumstances to do so, in order to install, maintain, or remove the surveillance device, or to access and use electricity to power the surveillance device:
(i)
enter any premises, area, or vehicle specified in the warrant:
(ii)
break open or interfere with any vehicle or other thing:
(iii)
temporarily remove any vehicle or other thing from any place where it is found and return it to that place.
(4)
Despite subsection (3)(d) and (e), if the Judge has not been provided in the application, or otherwise, with the information specified in those provisions because the applicant is unable to provide it, the warrant must instead state the details (as provided under section 52(2) or otherwise) of the circumstances in which the surveillance is to be undertaken in enough detail to identify the parameters of, and objectives to be achieved by, the use of the surveillance device.
(5)
Despite subsection (1)(c), a Judge may issue a further surveillance device warrant in respect of the same suspected offence in regard to which the Judge, or another Judge, has previously issued a surveillance device warrant.
Surveillance device warrant report
Search and Surveillance Act 2012, Section 59
Surveillance device warrant report
(1)
A person who carries out the activities authorised by a surveillance device warrant must provide a surveillance device warrant report within 1 month after the expiry of the period for which the warrant is in force, as specified in the warrant, to the Judge who issued the warrant or, if that Judge is unable to act, to a Judge of the same court as the Judge who issued the warrant.
(2)
The surveillance device warrant report must contain the following information:
(a)
whether carrying out the activities authorised by the surveillance device warrant resulted in obtaining evidential material:
(b)
whether or not the evidential material obtained as a result of carrying out the activities authorised by the warrant was evidential material specified in the warrant in accordance with section 55(3)(e):
(c)
the circumstances in which the surveillance device was used:
(d)
whether any criminal proceedings have been brought or are under consideration as a result of evidential material obtained under the warrant:
(e)
any other information stated in the warrant as being required for inclusion in the surveillance device warrant report.
