Surveillance

Question 1

Surveillance Risk Assessment

Answer 1

• Identify
• Assess
• Consider in planning before surveillance is used

TENR - Threat, exposure, necessity, response.

Your key consideration is the safety of Police and any nearby people.

Question 2

• What is surveillance?

Answer 2

Planned and directed activity, open or covert:
- observing and recording of that observation of people, vehicles, places and things
- tracking the location of a thing or person, whether that thing has been interrupted or tampered with
- intercepting private communication

S&SA2012 sets clear boundaries for the lawful sue of a surveillance device:
- where there is no trespass involved
- where trespass is involved
- where warrantless powers exist

Question 3

What is a Surveillance Device?

Answer 3

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

For example:
- a visual surveillance device (looking)
- an interception device (listening)
- a tracking device (following)

Question 4

• Visual Surveillance Device

Answer 4

a) means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device used to observe, 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.

Question 5

Section 46 - Activities for which surveillance device warrant is required

Answer 5

a) use of an interception device to intercept private communications

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 way dealt with, and the installation of the device does not involve trespass to land or goods.

c) observation of private activity in private premises, and any recording of that observation, by means of a visual device

d) use of a surveillance device that involves trespass onto private property.

Question 6

Exceptions to the requirement of a surveillance device warrant

Answer 6

• situations of emergency or urgency
• activities that do not require a warrant

Question 7

Private Lands and Goods

Answer 7

Surveillance activity is restricted in places an individual ‘ought reasonably expect’ are private.

Those places include land (in private ownership) and any private premises on the land and ‘goods’ - chattels, vehicles and other tangible belongings.

Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land and unauthorised handling of goods, unless authorised by a SDW.

Question 8

• Private Premise v Non-Private Premise

Answer 8

Private premise - dwelling house, marae

Non-Private Premise - premises or parts of a premise to which members of the public are frequently permitted to have access. Includes any part of a hospital, bus station, railway station, airport or shop.

Question 9

• Private Activity

Answer 9

Acknowledges fundamental human rights. A participant in an activity can reasonably expect the activity is private, if it is carried out in private premises.

Question 10

• Private Communication

Answer 10

a) means a communication (whether oral or written, 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 communications.

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 11

Trespass Surveillance

Answer 11

Involves trespass onto land or trespass to goods. Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.

Question 12

Restrictions on Surveillance Devices

Answer 12

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

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

Question 13

• Curtilage

Answer 13

Means the land immediately surrounding the house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’.

It defines the boundary in which a occupier can have reasonable expectation of privacy and where common daily activities take place.

Question 14

Section 46 - Activities for which surveillance device warrant is required

Answer 14

Curtilage Limitations
e) observation of private activity in the curtilage of private premises and any recording of that observation, if any part of that observation or recording is by means of a visual surveillance device, and the duration of that observation exceeds
- 3 hours in any total 24 hour period
- 8 hours in total

AKA - A visual SD 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 15

Interception

Answer 15

In relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either:
- when it is taking place
- while it is in transit

Question 16

• Interception Device

Answer 16

a) means any electronic, mechanical, electromagnetic, optical or electrooptical instrument, apparatus, equipment or other device used to observe, observe and record, a private activity.

b) does not include a hearing aid or similar device used to correct subnormal hearing of the user.

Question 17

• Interception Device Limitations

Answer 17

An SDW will only be authorised for use of an interception device for gathering evidential material for:
- offences punishable by 7 or more years imprisonment
- identified Arms Act 1983 offences
- identified psychoactive substances act 2013

Question 18

• Voluntary Oral Communication

Answer 18

Communication between one or more persons where at least one party has given their consent for the communication to be recorded. No requirement to obtain SDW to intercept and record a voluntary oral communication.

Question 19

Tracking Device

Answer 19

A device that may be used to help ascertain by electronic or other means either or both of the following:
- the location of a thing or person
- whether a thing has been opened, tampered with or is some way dealt with.

Tracking devices may only be used with the assistance of specialist squads.

Question 20

Situations of Emergency or Urgency

Answer 20

Section 48 acknowledges that in certain situations Police may need to act immediately without warrant to use any 1 or more surveillance device.

Two key ingredients for emergency and urgency:
- Entitled to apply. Meaning you would be entitled to apply for an SDW as the situation is one of serious criminal activity.
- Impracticable in the circumstances - means you need to use a device urgently as it is not immediately practicable to obtain an SDW.

Above circumstances must apply and suspected offence has, is or will be committed and is:
- punishable by 14 years imprisonment or more
- you believe that the use of SD would obtain evidential material
- is an Arms Act offence (psychotic and may hurt others, PO or PSO is in place, grounds to make a PO)
- is a drugs offence

OR
- likely to cause injury or serious property loss/damage and surveillance necessary to prevent offending from being committed or continuing
- presenting risk to life and safety and surveillance is necessary for emergency response

Question 21

Time Constraints in Situations of Emergency or Urgency

Answer 21

Warrantless period for the use of SD in a situation of emergency or urgency is a period not exceeding 48hours.

Application still required if the surveillance might continue beyond period within which it is practicable to obtain warrant.

Approval to use interception device in emergency situation should be obtained by a DI unless:
- immediacy of the situation does not allow for prior planning and approval from DI in consultation with Legal; AND
- statutory criteria is met; AND
- an opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time.

Question 22

Requirement to Report

Answer 22

When a warrantless surveillance power is exercised the enforcement officer must provide a notification to a Judge within 1 month after the date of the last day of any period of 48hours or less over which the surveillance device was used.

Question 23

SDW Limitations

Answer 23

SDW issued for a period of no more than 60 days after the date on which the warrant is issued, and is in force for that period.

There is no warrant renewal procedure under the Act. To extend the period of 60 days or the lesser period for which the warrant is valid, a new application is required.