Surveillance

Question 1

What is surveillance?

Answer 1

Police surveillance is a planned and directed activity. Either open or covert.

Question 2

What is the purpose of surveillance?

Answer 2

• Observing, and any recoding 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 3

The Search Surveillance act 2012 REGULATES only those surveillance activities undertaken by way of device. It establishes clear boundaries for the LAWFUL use of a surveillance device. Under what circumstances are these boundaries established?

Answer 3

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

Question 4

Any surveillance work (with or without warrant) are incredibly risky. Outline the steps to take when assessing risks?

Answer 4

• Identify risk
• Assess Risk
• Consider planning before surveillance is executed
• Apply TENR

Question 5

– When should the component of a risk assessment be conducted when involving a surveillance device warrant?

Answer 5

Thorough risk assessment is a component of the search and surveillance device warrant application process and must be repeated before a surveillance device warrant is executed.

Question 6

– What is a surveillance device?

Answer 6

A surveillance device is a device which ASSISTS and ENHANCES your normal capabilities to carry out the surveillance

Question 7

Name the kinds of Surveillance devices

Answer 7

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

Question 8

What is a visual surveillance device?

Answer 8

Means any electronic, mechanical, electromagnetic, optical, or electrooptical instrument, apparatus, equipment or other device that is used to observe, or observe and record, a private activity BUT, does not include spectacles, contact lenses, or similar device used to correct subnormal vision of the user to no better that normal vision

Question 9

Activities for which surveillance device warrant required (Section 46)

Answer 9

– Observations of private activity in private premises, and any recording of that observation, by means of a visual surveillance device

Question 10

– Some exceptions apply to the requirements to obtain a surveillance device warrant for the use of a visual surveillance device. What are they?

Answer 10

• Situations of emergency or urgency (Although use of a surveillance device in these situations must still reported in the on-line system) AND
• Activities that do not require a warrant.

Question 11

What is the definition of “Private Lands and goods”

Answer 11

Where surveillance with a surveillance device is concerned, the search and surveillance act RESTRICTS surveillance activity in places an individual “Ought reasonably to expect” are private. Those PLACES include land (in private ownership) and any private premises on that land and “GOODS”. Goods generally mean chattels and include vehicles and other tangible belongings.

Question 12

Define Trespass in regard to Surveillance?

Answer 12

Surveillance is unlawful if it involves trespass, which is unauthorised entry onto private land or handling of goods, UNLESS authorised by a surveillance device warrant. (Exceptions apply in situations of emergency or urgency).

Question 13

– Define “private premises”

Answer 13

– Private premises means a private dwelling house, a Marae, and any other premises that are not within the definition of non-private premises

Question 14

Define “Non-private premises?

Answer 14

Non-private premises means premises, or part of a premise, to which member of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport, or shop.

Question 15

What parts of non-private premises are considered as private premises.

Answer 15

For example, not all parts of hospitals, bus stations etc are non- private premises. Areas that would be considered private are hospital theatres, consulting rooms, railway station office areas, staff meal rooms.

Question 16

Define a “Private activity”

Answer 16

The definition of a private activity acknowledges fundamental human rights. A participant in an activity can REASONABLY expect the activity is private, if it is carried out in a private premises. BUT “ought reasonably to expect” must be an objective test i.e. what any person would expect to private.

Question 17

What is the “Key importance” when considering what is a private activity?

Answer 17

WHERE private activities occur is of key importance. Consider – would you expect your participation in the following activities to be private? Sleeping in a hotel room, planting in your garden, and trying on clothes in a changing room. Private activities may occur in places that do not fit the definition of private premises.

Question 18

– Define “Private Communication”

Answer 18

Means communication (whether 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.

Question 19

When is “Private Communication” not considered Private?

Answer 19

– Does not include 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 20

Can any person expect their communication to be private?

Answer 20

Any person can reasonably expect their communication be private when it occurs in circumstances where they have the right to expect it will not be intercepted or recorded. When reasonable expectations of privacy are interfered with or intruded upon by the use of an interception device, a surveillance device warrant is required.

Question 21

Define “Trespass Surveillance”?

Answer 21

Surveillance that involves trespass onto land or trespass to goods

Question 22

When does “Trespass surveillance” Occur

Answer 22

Trespass Surveillance occurs the moment an enforcement officer steps onto private property without consent. For surveillance purposes, if you do not have consent to enter onto private property, THEN YOU ARE TRESPASSING

Question 23

What are the “restrictions on use of surveillance devices” for VISUAL surveillance

Answer 23

Any warrant application to use a visual surveillance device for trespass surveillance will only be authorised for obtaining evidential material for serious offences

Question 24

What are the “restrictions on use of surveillance devices” for interception devices.

Answer 24

– Any warrant application to use an interception device, whether or not a trespass surveillance occurs, is RESTRICTED to obtaining evidential material for serious offences ONLY.

Question 25

What is a “serious offence” when considering restrictions on use of surveillance devices?

Answer 25

A serious offence is an offence punishable by 7 years imprisonment or more

Question 26

What is Section 46 (d)? “Activities for which surveillance device warrants required”

Answer 26

(d) Use of a surveillance device that involves the trespass onto private property.

Question 27

What is “Curtilage”

Answer 27

Curtilage means the land immediate surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated “open fields beyond”

Question 28

What does the “curtilage” define?

Answer 28

Curtilage defines the boundary within which a homeowner can have “reasonable expectations of privacy” and where “common daily activities” take place. Activities that do not require a warrant cover the use of a VISUAL surveillance device within the curtilage of private property, but usage is restricted to time limitations

Question 29

What are the curtilage limitations Under Section 46 (e) “Activities for which surveillance device warrant require”?

Answer 29

– Section 46(e) Observations 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 connected series of investigations exceeds –

• 3 hours in any total 24-hour period OR
• 8 hours in total.

Question 30

– Explain/summarise Section 46 (e)

Answer 30

A visual surveillance device may be lawfully used without warrant to gather evidential material for a serious offence if its usage does not exceed the established time limits.

Question 31

Define “interception”

Answer 31

Intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communications either,

• When it is taking place, or
• While it is in transit

Question 32

Define a “interception device”

Answer 32

Means any electronic, mechanical, electromagnetic, optical or electrooptical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication. Does not include hearing aid, or similar device used to correct subnormal hearing of the user to no better than normal use.

Question 33

What is section 46 (a) “Activities for which surveillance device warrant required

Answer 33

Use of an interception device to intercept private communications

Question 34

What are the limitations on use of an interception device?

Answer 34

The SnS act limits the use of an interception device, to intercept private communication, whether or not that communication occurs in private, or non-private premises, to obtaining evidential material for SERIOUS OFFENCES only.

Question 35

– A surveillance device warrant will only be AUTHORISED for use of an interception device for gathering evidential material for, What?

Answer 35

• Offences punishable by 7 or more years imprisonment
• Identified arms act 1983 offences
• Identified psychoactive substances act 2013 offences

Question 36

– Define “Voluntary Oral Communication”

Answer 36

A voluntary oral communication is a communication between one or more persons where at least one-party inn the communication gives their consent for the communication to be recorded (section 47). There is NO requirement to obtain s surveillance device warrant to intercept and record a voluntary oral communication.

Question 37

Provide an example of “Voluntary oral communication”

Question 38

Provide an example of “Voluntary oral communication”

Answer 38

An offender admits his role in a drug ring and agrees to allow police record his telephone conversation with the ringleader to gather evidential material.

Question 39

What is a tracking device?

Answer 39

Means a device that, may be used to help ascertain, by electronic or other means, either or both of the following

• (a) The location of a thing or a person
• 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 40

– What are the limitations to obtain a surveillance device warrant using a tracking device?

Answer 40

A surveillance device warrant may authorise the use of a tracking device to obtain evidential material for the investigation of any offence punishable by imprisonment.

Question 41

What is Section 46 (b) Activities for which a surveillance device warrant required

Answer 41

Use of a tracking device, except where a tracking device is installed solely for the purposes of ascertaining whether a thing has been opened, tampered with, or in some way dealt with, and the installation of the device does not involve trespass to land or trespass to goods.

Question 42

Define “Specialist support”

Answer 42

Tracking devices may ONLY be used with the assistance of specialist squads. AND Covert surveillance using sophisticated electronic surveillance devices must be undertaken only by specialist trained officers.