Sections 45,46, 47 & 48

Question 1

Section 45 - Restrictions on some trespass surveillance and use of interception device

(1) - To allow trespass surveillance the offence has to be?
(a) - Length of imprisonment?

or

(b) - Arms Act?
(Sections 44, 44A, 45, 50, 50A, 50B, 50D, 51, 53A, 54, 54A, or 55 of the Arms Act 1983)
or

(c) Psychoactive Substances Act?
(Sections 25, 26, or 70)

Answer 1

(1) Offence has to be:
(a) - punishable by a term of imprisonment of 7 years or more; or
(b)

• Selling or supplying: pistol,restricted weapon,
  prohibited firearm, prohibited magazine or prohibited part

Carrying or possessing firearms, etc, except for lawful, proper, and sufficient purpose

Unlawful possession of pistol,restricted weapon, prohibited firearm, prohibited magazine,prohibited part.

Unlawfully carrying or possessing prohibited firearm, firearm, airgun, pistol, ammunition, explosive, or restricted weapon in public place

Use or attempted use of prohibited firearm to resist or prevent arrest or commit offence, to resist or prevent arrest or commit offence or carrying prohibited firearm with criminal intent

(c)

Importation of psychoactive substance without licence

Manufacture of psychoactive substance without licence

Selling and supplying psychoactive substance that is not approved product.

Question 2

Section 46 - Activities for which surveillance device warrant required.

This section is subject to section 45.

Q: Except as in 47 and 48, to undertake any 1 or more of the following activities must obtain a surveillance device warrant to:

(a) Intercept….
(b) Track……
(c) Observe…..
(d) Trespass…..
(e) Observe….. If time exceeds for the investigation (i) & (ii)

Answer 2

1

(a) 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) observe private activity in the curtilage of private premises, and record it, if using a visual surveillance device.

You need a warrant if the duration of the observation for a single investigation or connected series of investigations, exceeds—

(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.

Question 3

Section 47 - Some activities that do not require a warrant:

(a) If you are lawfully somewhere you can…..
(b) Recording audio without parties knowing…..
(c) Authorised spy stuff….
(d) Other acts….

Answer 3

(a) recording what you observe or hears there as long as you record only those matters that you could see or hear without the use of a surveillance device
(b) Covert audio can record recording a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them. (You can still get a warrant for this)
(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 the S&S 2012 Act.

Question 4

Section 48 - Surveillance device warrant need not be obtained for use of surveillance device in some situations of emergency or urgency

(1) - How long does it apply?
(2) - When can you use this power?
(3) What are the situations when you can use it? (there are

(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.

Answer 4

(1) A surveillance device may be used for a period not exceeding 48 hours from the time the surveillance device is first used without obtaining a surveillance device warrant - if S 48 conditions are met.

(2)

You are able to apply for a warrant but obtaining a surveillance device warrant within the time in which it is proposed to undertake the surveillance is impracticable in the circumstances.

(3)

(a)
RGTS - 14 year offence
RGTB - obtain evidence

(b)
RGTS - S14(2) Is met (offence is/will be committed that will injure or cause serious damage to property; or risk to life and safety of a person)
RGTB - that the use of the surveillance device is necessary to prevent the offending from being committed or continuing, or to avert the emergency.

(c)
RGTS - 1 or more of the circumstances set out in section 18(2) exist; and
RGTB - use of the surveillance device is necessary to facilitate the seizure of the arms.

(d)
RGTS - category 3 or 4 offence in relation to arms or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; and
RGTB - to believe that use of the surveillance device would obtain evidential material in relation to the offence.

(e)
RGTS - that an offence has been committed, or is being committed, or is about to be committed in relation to a Class A, B or C controlled Drug of the Misuse of Drugs Act 1975, or to a precursor substance; and
RGTB -
to believe that use of the surveillance device would obtain evidential material in relation to the offence.

(f) RGTB - that a person is in possession of any 1 or more of the things described in section 81(2)(a) to (d) (drugs and evidence in controlled drops/deliverers); and
RGTB - to believe that use of the surveillance device is necessary to facilitate the thing’s seizure.

Question 5

S 48 - what can you do to facilitate the device?

Answer 5

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.