Surveillance

Question 1

What is surveillance?

Answer 1

Police surveillance is planned and directed activity, either open or covert, and for the purpose of:

• Observing, and any recording of that observation, of people, vehicles, places and things.
• Ascertaining (tracking) the location of a thing or person, or whether a thing has been interfered or tampered with.
• Intercepting a private communication.

Question 2

What boundaries does the SSA regulate with regards to the lawful use of a surveillance device?

Answer 2

• Where trespass is not involved.
• Where trespass is involved.
• Where warrantless powers exist.

Question 3

Surveillance work is inherently risky. How are surveillance risks mitigated?

Answer 3

Risks are identified, assessed and considered in planning before surveillance is executed.

TENR is applied before a surveillance device warrant is executed.

Question 4

What is a surveillance device?

Answer 4

A device which assists and enhances your normal capabilities to carry out the surveillance.

Question 5

Give examples of a surveillance device?

Answer 5

A surveillance device may be any one of the following kinds of device:

• A visual surveillance device.
• An interception device.
• A tracking device.

Question 6

What is a visual surveillance device?

Answer 6

Visual surveillance device-

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used 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.

Question 7

What exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device?

Answer 7

• Situations of urgency or emergency
• Activities that do not require a warrant

Question 8

S46 - When is a surveillance device warrant required?

Answer 8

(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 hr period; or
(ii) 8 hours in total.

This section is subject to S45.

Question 9

What exceptions apply to s46(c)?

Answer 9

Situations of urgency or emergency (although use of a surveillance device in these situations must still be reported in the online system); and

Activities that do not require a warrant.

Question 10

In what places does the SSA restrict surveillance activity?

Answer 10

Places that include land in private ownership and any private premises on that land, and ‘goods’.

Question 11

What is the definition of goods?

Answer 11

Chattels, vehicles, and other tangible belongings.

Question 12

What is Trespass under S+S?

Answer 12

Unauthorised entry onto private land or unauthorised handling of goods, unless authorised by a surveillance device warrant.

Question 13

Define private premises.

Answer 13

A private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises.

Question 14

Define non private premises

Answer 14

Premises or part of a premises to which members of the public are frequently permitted to have access to, and includes any part of a hospital, bus/railway station, airport or shop

Note: not all parts of hospitals, bus stations etc are non private premises. Areas that would be considered private are:

Hospital: theatres, consultation rooms.

Railway station: office area, staff meal rooms.

Question 15

Define private activity.

Answer 15

Activity that, in the circumstances, any one or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants.

‘Ought reasonably to expect’ is an objective test and where private activities occur is of key importance.

Question 16

What is the objective test with regards to private activity?

Answer 16

‘Ought reasonably to expect’ - what any person would expect.

Question 17

What does one need to be aware of when considering where private activity may occur?

Answer 17

That private activity may occur in places that do not fit the definition of private premises.

Question 18

Define private communication.

Answer 18

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 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.

Question 19

Define Trespass surveillance.

Answer 19

Trespass surveillance means:

• Surveillance that involves trespass to land or trespass to goods.

Question 20

What is the starting point for trespass surveillance?

Answer 20

Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.

Question 21

What is the offence threshold for an interception device?

Answer 21

The offence must be a ‘serious offence’:

• An offence punishable by 7 years imprisonment or more.
• Identified Arms Act 1983 offences.
• Identified Psychoactive Substances Act 2013 offences.

Question 22

Define Curtilage.

Answer 22

The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated open fields beyond.

It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.

Question 23

What is a layman’s explanation of curtilage?

Answer 23

The curtilage of a dwelling is the ground between the fence, garden, hedge or mowed grass border and the dwelling.

It can be taken to mean a garden, yard or field, or other piece of ground or building near to or belonging to a house.

Question 24

What is the difference between the curtilage of a surburban house and farm?

Answer 24

The curtilage of a surburban house is likely to be clearly defined by a fenceline whereas on a farm, the house and curtilage will form a small part of the whole property.

Question 25

Describe when you would need to obtain a surveillance device warrant with regards to curtilage.

Answer 25

Section 46(e) - Activities for which surveillance device warrant required.

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 that observation, for the purposes of a single investigation, or a connected series of investigations exceeds:

(i) 3 hours in any total 24 hour period; or

(ii) 8 hours in total.

Question 26

Define interception.

Answer 26

Includes hear, listen to, record, monitor, acquire or receive the communication either:

• when it is taking place; or
• while it is in transit.

Question 27

Define interception device.

Answer 27

Interception device:

(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 a private communication; but
(b) does not include a hearing aid, or similar device used to correct subnormal hearing of the user to no better than normal hearing.

Question 28

When is a surveillance device warrant required for an interception device with regards to private communication?

Answer 28

Gathering evidential material for:

• offences punishable by 7 or more years imprisonment
• Identified A.A offences
• Identified Psychoactive Substances Act 2013 offences.

Question 29

Define voluntary oral communication.

Answer 29

Communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded.

(Section 47).

Question 30

Define a tracking device.

Answer 30

Tracking device:

(a) 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 a 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.

Question 31

What is the threshold for a surveillance device warrant authorising the use of a tracking device?

Answer 31

Any offence punishable by imprisonment.

Question 32

What is of key importance regarding private activity?

Answer 32

Where it occurs.

Question 33

Describe some of the activities under S47 that you do not need a SDW for.

Answer 33

• Being lawfully in private premises and recording what you observe or hear there (provided that anything you hear or observe you didn’t need a SD for).
• Covert audio recording of a voluntary oral communication between two or more persons made with the consent of at least one of them.