Surveillance Flashcards
Rights to Privacy…..
Individual rights to privacy underpin the surveillance regulations in the
Search and Surveillance Act 2012.
Everyone has the right to privacy in their own home, the right to refuse entry
to others and the right to
Section 45
Restrictions on some trespass surveillance and use of interception device.
Obtaining evidential material in relation to an offence:
* punishable by a term of imprisonment of 7 years or more, or
* against section 44, 45, 50, 51, 54, or 55 of the Arms Act 1983.
- Undertake – trespass surveillance.
- Use – an interception device.
Section 46
Activities for which surveillance device warrant required.
Unless permitted under s 47 (which specifies some activities that do not require a warrant) or authorised by s 48 (which provides for the use of a surveillance device in situations of urgency or emergency), a warrant is required before a police officer or other enforcement officer uses a surveillance device for the purpose of:
(a) intercepting private communications;
(b) tracking (unless the purpose is only to determine whether a thing is being handled and the installation of the device does not involve a trespass on land or trespass to goods);
(c) visual observation of private activity on private premises, and any recording of that observation;
(d) visual observation of private activity in the curtilage of private premises for longer than the time specified in para (e)(i) or (ii), and any recording of that observation;
(e) visual surveillance that involves a trespass to land or goods.
Section 48
Surveillance device warrant need not be obtained for use of surveillance device in some.
(1) An enforcement officer who is in any 1 or more of the situations set out in subsection (2) may use a surveillance device for a period not exceeding 48 hours from the time the surveillance device is first used without obtaining a surveillance device warrant, if— (a) he or she is entitled to apply for a surveillance device warrant in relation to those situations; but (b) obtaining a surveillance device warrant within the time in which it is proposed to undertake the surveillance is impracticable in the circumstances. (2) The situations are as follows: (a) the enforcement officer has reasonable grounds— (i) to suspect that an offence punishable by a term of imprisonment of 14 years or more has been, is being, or is about to be committed; and (ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence: (b) the enforcement officer has reasonable grounds— (i) to suspect that any 1 or more of the circumstances set out in section 14(2) exist; and (ii) to believe that use of the surveillance device is necessary to prevent the offending from being committed or continuing, or to avert the emergency: (c) the enforcement officer has reasonable grounds— (i) to suspect that any 1 or more of the circumstances set out in section 18(2) exist; and (ii) to believe that use of the surveillance device is necessary to facilitate the seizure of the arms: (d) the enforcement officer has reasonable grounds—
(i) to suspect that a 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 (ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence: (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: (f) the enforcement officer has reasonable grounds— (i) to believe that a person is in possession of any 1 or more of the things described in section 81(2)(a) to (d); and (ii) to believe that use of the surveillance device is necessary to facilitate the thing’s seizure. (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.
Section 47
Some activities that do not require warrant under this subpart.
(1) No warrant under this subpart is required by an enforcement officer for any 1 or more of the following activities: (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: (c) activities carried out under the authority of an interception warrant issued under— (i) section 4A(1) or (2) of the New Zealand Security Intelligence Service Act 1969; or (ii) section 17 of the Government Communications Security Bureau Act 2003: (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. (2) Subsection (1)(b) does not prevent an enforcement officer from applying for a warrant authorising covert audio recording in the circumstances set out in that subsection.
What is Surveillance?
Police surveillance is planned and directed activity. Either open or covert, 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
What is surveillance continued……
Clear boundaries are established for
the lawful use of a surveillance device:
- where trespass is not involved
- where trespass is involved
- where warrantless powers exist
Surveillance risk assessment
Any surveillance work (with or without warrant) is inherently risky.
These risks must be:
- identified
- assessed
- considered in planning before surveillance is executed
Apply TENR to assess:
* threat
* exposure
* necessity
* response
What is a surveillance device?
A surveillance device is a device which assists and enhances your normal
capabilities to carry out the surveillance.
A surveillance device may be any one or more of the following kinds of
device:
* a visual surveillance device
* an interception device
* a tracking device
What is a visual surveillance device?
Visual surveillance device –
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used
to observe, or 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.
Private land and goods
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.
Private premise
Private premises means a private dwellinghouse, a marae, and any other
premises that are not within the definition of non-private premises.
Non-Private premise
Non-private premises means premises, or part of a premises, to which
members of the public are frequently permitted to have access, and includes
any part of a hospital, bus station, railway station, airport or shop.
Note: Not all parts of hospitals, bus stations etc are non-private premises.
Areas that would be considered as private are:
* hospitals – theatres, consulting rooms
* railway station – office area , staff meal room
Private activity
The definition of private activity acknowledges fundamental human rights.
A participant in an activity can reasonably expect the activity is private, if it is
carried out in private premises.
But – ‘ought reasonably to expect’ must be an objective test i.e. what any
person would expect.
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 back garden
* trying on clothes in a changing room
Be aware – private activities may occur in places that do not fit the definition
of private premises.
Trespass and trespass surveillance
Trespass surveillance means –
Surveillance that involves trespass onto land or trespass to goods.
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.
Restrictions on use of surveillance devices
Any warrant application to use a visual surveillance device for trespass
surveillance will only be authorised for obtaining evidential material for
serious offences.
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.
(A serious offence is an offence punishable by 7 years imprisonment or
more).
Section 46 – Activities for which surveillance device warrant required
(d) Use of a surveillance device that involves trespass onto private property