Electronic Operations Flashcards
Drug Dealing Offence
Any offence against Section 6 MODA1975 which involves Class A or B.
Private Communication
Defined under Section 3 Search and Surveillance Act 2012:
(a) Means a communication (whether oral, written, form of 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 a kind occurring in circumstances in which any party to the to the communication 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
Defined under Section 3 Search and Surveillance Act 2012:
(a) means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept or record private communication; but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of user to no better than normal hearing.
Visual Surveillance Device
Defined under Section 3 Search and Surveillance Act 2012:
(a) means any electronic, mechanical, electromagnetic, optical or electro-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.
(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.
Visual Trespass Surveillance
Defined under Section 3 Search and Surveillance Act 2012:
Trespass surveillance involving the use of Visual Surveillance Device.
Surveillance Device
Defined under Section 3 Search and Surveillance Act 2012:
(a) Interception Device
(b) Tracking Device
(c) Visual Surveillance Device
Tracking Device
Defined under Section 3 Search and Surveillance Act 2012:
(a) A device that may be used to help ascertain, by electronic or other means, either or both of the following:
(i) 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.
Serious Offence
Trespass Surveillance / Interception Device to obtain evidential material require an offence punishable by 7 years or more (or against certain sections of the Arms Act).
Activities for which a Surveillance Device Warrant is required:
Section 46 Search and Surveillance Act 2012
(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 a interception device to intercept 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 recording of that observation, by means of a visual surveillance device:
(d) use of a surveillance device that involves trespass to land or goods:
(e) observation of private activity in the curtilage of private premises, and 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 connection series of investigations, exceeds -
(i) 3 hours in a 24 hours period
(ii) 8 hours in total.
Activities that do not require a Surveillance Device Warrant
Section 47 Search and Surveillance Act 2012
(a) The enforcement officer -
(i) is lawfully in private premises; and
(ii) recording what they observe and hear without the use of a surveillance device):
(b) convert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them:
(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.
Specific provisions relating to drug offences in situations of emergency
Section 48(2)(e) Search and Surveillance Act 2012
The enforcement officer has reasonable grounds:
(i) suspect offence is being/has been/is about to be committed in relation to controlled drug described MODA1975; and
(ii) believe that a surveillance device will obtain evidential material relating to the offence.
CANNOT be used for more than 48 hours.
Alternate Investigative Techniques Case Law - R v McGinty
The evidence in the present case of continued heroin dealing, in respect of which orthodox techniques such as searching premises and following vehicles had been tried without success, was sufficient. A Judge was not required to refuse a warrant because Police had not exhausted every conceivable alternative technique of investigation.
Admissibility of Evidential Material Relevant to other Offences
Section 57 Search and Surveillance Act 2012
Subsection (2) applies, if in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using 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 is issued for 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 bee unlawfully used.
(2) Evidence referred to in (1) is not inadmissible in criminal proceedings as such.
Protection of CHIS Identity and Information - R v McGinty
Disclosure of the identity of alleged informants was not required under the Act, and the trial Judge was correct in deleting from the application certain parts which would have been likely to lead to the identification of informants. However, the trial Judge was entitled to insist on the disclosure if he saw fit.
Criteria for issuing Surveillance Device Warrant
Section 51 Search and Surveillance Act 2012
(a) there are reasonable grounds -
(i) RGTS 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) RGTB 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.
Warrants granted for period up to 60 days. Irrelevant information gained by interception of private communication must be destroyed.
