Surveillance

Question 1

What is surveillance (pg 43)

Police surveillance is planned and directed activity. Either open or covert and for the purpose of:

Answer 1

• 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

Surveillance risk assessment (pg 43)

Any surveillance work (with or without warrant) is inherently risky. These risks must be:

AND

What is TENR

Answer 2

• Identified
• Assessed
• Considered in planning before surveillance is executed

AND

• Threat
• Exposure
• Necessity
• Response (measures to reduce risk)

Question 3

What is a surveillance device (pg 44)

Answer 3

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

Question 4

Types of surveillance devices (pg 44)

Answer 4

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

Question 5

What is a visual surveillance device (pg 44)

Answer 5

Visual surveillance device

a) means any device electronic, mechanical, electromagnetic, optical or eletro-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

Question 6

Visual surveillance device (pg 44)

S 46 - Activities for which surveillance device warrant required

Answer 6

c) Observation of private activity in private premises and any recoding of that observation by means of a visual surveillance device

Question 7

Visual surveillance device (pg 44)

Some exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device, these are:

Answer 7

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

Question 8

Goods (pg 44)

Answer 8

Goods generally mean chattels and include vehicles and other tangible belongings.

Question 9

Private premises (pg 45)

Answer 9

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

Question 10

Non-private premises (pg 45)

Answer 10

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.

Question 11

Private activity (pg 45)

Answer 11

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 (hotel room, back garden, changing room)

Question 12

Private Communication (pg 46)

Answer 12

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 13

Trespass Surveillance (pg 46)

And

S 46 - Activites for which surveillance device warrant required:

Answer 13

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.

S 46 - Activities for which surveillance device warrant required:
d) Use of a surveillance device that involves trespass onto private property

Question 14

Trespass and trespass surveillance (pg 46)

Restrictions on use of surveillance devices

Answer 14

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 interception device, whether or not a trespass surveillance occurs, is restricted to obtaining evidential material for serous offences only.

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

Question 15

What is curtilage (pg 47)

Answer 15

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

If defines the boundary within which a home owner can have reasonable expectation 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 16

Curtilage limitations (pg 47)

Answer 16

S 46 - Activities for which surveillance device warrant required.

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 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
ii) 8 hours in total

Question 17

Interception (pg 48)

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

Answer 17

• When it is taking place

- While it is in transit

Question 18

Interception device (pg 48)

Answer 18

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 ti no better than normal hearing

Question 19

Limitations on use of an interception device (pg 48)

A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for:

Answer 19

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

Question 20

Voluntary oral communication (pg 49)

Answer 20

A voluntary oral communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (S 47).

There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.

Question 21

Tracking device (pg 49)

Answer 21

a) Means 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 22

Tracking device (pg 49)

What type of offence

Answer 22

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 23

Interception device (pg 48)

S 46 - Activities for which surveillance device warrant required

Answer 23

a) Use of an interception device to intercept private communication

Question 24

Tracking device (pg 49)

S 46 - Activities for which surveillance device warrant required

Answer 24

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 trespass to goods

Question 25

Situations of emergency or urgency (pg 51)

Two key ingredients exist for any situation to be recognized as one of emergency or urgency

Answer 25

Ingredient - ‘entitled to apply’
Means - you would be entitled to make an application for a surveillance device warrant as the situation is one of serious criminal activity

Ingredient - ‘impracticable in the circumstances’
Means - you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant

Question 26

Situations of emergency or urgency (pg 51)

Surveillance without warrant in situations of emergency or urgency is permitted only where the above circumstances apply and the suspected offence has been, is being or is about to be committed and is:

Answer 26

• Punishable by 14 years imprisonment or more
• You believe that use of the surveillance device would obtain evidential material in relation to the offence
• An Arms Act 1983 offence (due to mental or physical condition is incapable of having proper control, protection order / PSO in place or grounds for protection order application)
• A drug offence
  There is a situation which is:
• Likely to cause injury or serious property loss / damage and surveillance is necessary to prevent offending from being committed or continuing
• Presenting risk to life and safety and surveillance is necessary as an emergency response

Question 27

Situations of emergency or urgency (pg 52)

Time constraints

Answer 27

The warrantless period for the use of a surveillance device in a situation of emergency or urgency is a period not exceeding 48 hours.

An application for a surveillance device warrant must still be made if the surveillance might continue beyond he period within which it is practicable to obtain a warrant.

Question 28

Situations of emergency or urgency (pg 52)

Requirement to report - report on use of surveillance device in situation of urgency or emergency

Answer 28

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

Question 29

Period of surveillance device warrant is limited (pg 53)

Answer 29

A surveillance device warrant may be 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.