Interception Devices (Electronic Operations)

Question 1

Surveillance (Section 45-64 Search and Surveillance Act 2012) discusses:

Answer 1

The Search and Surveillance Act 2012 sets out the law in relation to Police “surveillance”. Surveillance in this Act includes:
* observing, and any recording of that observation, of people, vehicles, places and things;
* ascertaining (tracking) the location of a thing or person, and/or ascertaining whether a thing has been tampered with; or
* intercepting a private communication through the use of a “surveillance device”.

Question 2

Surveillance device discusses:

Answer 2

• 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.

Question 3

Trespass Surveillance discusses:

Answer 3

Surveillance will be unlawful if it involves a trespass, (that is unauthorised entry onto private land or unauthorised handling of goods), unless authorised by a surveillance device warrant.
Where trespass surveillance is involved the legislation restricts the use of a visual surveillance device to obtaining evidential material for serious offences only.

Question 4

What is a serious offence?

Answer 4

A serious offence in relation to trespass surveillance is an offence punishable by 7 years imprisonment or more (or against certain sections of the Arms Act).

Question 5

What are the activities a Surveillance device warrant is required?

Answer 5

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.

Question 6

What activities do not require a SW?

Answer 6

The activities in section 47 likely to be relevant to your role are:
(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:
(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.

Question 7

What are the restrictions on the use if an Interception Device?

Answer 7

The Search and Surveillance Act 2012 restricts the use of an interception device, to intercept a private communication, whether or not that communication occurs in private or non-private premises, to obtaining evidential material for serious offences only. These offences are:
* offences punishable by 7 or more years imprisonment
* certain Arms Act 1983 offences.
In these circumstances, a surveillance device warrant is required.

Question 8

What is the only exception?

Answer 8

that exception occurs when consent is obtained by at least one of the parties to covertly record a voluntary oral communication made between that person and others involved in the communication.

Question 9

What is Voluntary oral communication?

Answer 9

A voluntary oral communication is a communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded.

Question 10

What are some situations of Emergency?

Answer 10

Surveillance without warrant in situations of emergency or urgency is permitted only where the offence is:
* punishable by 14 years imprisonment or more
* an Arms Act 1983 offence
* a drug offence (see below)
* 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 11

What are emergencies relation to drug offences?

Answer 11

Section 48(2)(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:”

Question 12

What are some alternate investigative techniques in Case Law?

Answer 12

R v McGinty - The evidence in the present case of continued heroin dealing, in respect of which the 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 the Police had not exhausted every conceivable alternative technique of investigation.

Question 13

Discuss the criteria for issuing a Surveillance Device warrant.

Answer 13

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.

Question 14

Discuss the Case Law regarding Protection of CHIS.

Answer 14

Section 64 of the Evidence Act 2006 grants privilege to informers that protects their identity and extends to information that is likely to disclose that identity.
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 disclosure if he saw fit.

Question 15

What must a Surveillance Device application contain?

Answer 15

Section 49 of the Search and Surveillance Act 2012, states that an application for a surveillance device warrant must be made by an enforcement officer and must contain certain particulars.

Question 16

Discuss the Form and content of Surveillance Device Warrant.

Answer 16

Section 55 of the Search and Surveillance Act 2012, outlines the form that a surveillance device warrant application should be in and what the contents should contain. This includes that it must:
* be in the prescribed form, if any; and
* be directed to every enforcement officer who has authority to carry out the activities authorised by the surveillance device warrant;
* specify a period of up to 60 days for which the warrant may be in force;
* contain a condition as to providing a surveillance device warrant report (as per section 59 of the Search and Surveillance Act 2012);
* contain a condition as to privilege.
Under subsection (2) the surveillance device warrant may be subject to any other conditions as specified by the approving Judge.
Other particulars that the application must contain are as follows:
* name of issuing Judge and date;
* the provision authorising the making of an application for a search warrant in respect of the suspected offence;
* the type of surveillance device the use of which the warrant authorises;
* the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance;
* the evidential material relating to the suspected offence that may be obtained by use of the surveillance device.
* that enforcement officer may use any assistance that is reasonable in the circumstances;
* provision as to provision of call associated data (as defined in section 3(1) of the Telecommunications (Interception Capability) Act 2004;
* provisions as to entry and use of force.

Question 17

Discuss the effects of a Surveillance Device Warrant.

Answer 17

A surveillance device warrant authorises you to intercept private communications by means of an interception device (section 46(1)(a) of the Search and Surveillance Act 2012).

Question 18

What are your reporting requirements?

Answer 18

Section 59 of the Search and Surveillance Act 2012 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, or a Judge of the same Court if that Judge is unable to act, within 1 month after the expiry of the period for which the warrant is in force. The information required to be contained in the report is detailed in section 59(2) of the Search and Surveillance Act 2012.

Question 19

Discuss Consensual Interception.

Answer 19

Taped evidence from intercepted private communications is admissible where one of the parties to the communication has previously consented to the interception taking place.
This technique can be an effective investigative tool in several categories of other serious offending, for example:
* homicide
* kidnapping and blackmail
* historical complaints of sexual assault.