Surveillance Flashcards
What is surveillance?
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
The Search and Surveillance Act 2012 regulates only those surveillance activities undertaken by means of a device. It establishes clear boundaries for the lawful use of a surveillance device:
• where trespass is not involved
• where trespass is involved
• where warrantless powers exist
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
Visual surveillance
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.
Some exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device.
• situations of emergency or urgency (although use of a surveillance device
in these situations must still be reported in the on-line system); and
• activities that do not require a warrant
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.
Private communication
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.
Note that any person can reasonably expect their communication to be private when it occurs in circumstances where they have the right to expect it will not be intercepted or recorded.
Where reasonable expectations of privacy are interfered with or intruded upon by the use of an interception device, a surveillance device warrant is required.
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
What is curtilage?
Curtilage –
Means 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.
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.
Explanation:
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.
The curtilage of a dwelling does not necessarily equate with the boundary of the property, although in the vast majority of cases the boundary and the curtilage will coincide exactly. Thus, the curtilage of a suburban 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.
Limitations on curtilage
The legislation sets time limitations on the use of a visual surveillance device for surveillance activity within the curtilage of private property.
Section 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; or (ii) 8 hours in total
Explanation:
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.
Interception
Intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either –
• when it is taking place, or
• while it is in transit
Interception device
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.
Note: A surveillance device warrant is required to use an interception device to intercept a private communication.
Section 46 – Activities for which surveillance device warrant required (a) Use of an interception device to intercept private communications
Limitations on use of an interception device
A surveillance device warrant 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 offences
Voluntary oral communication
A voluntary oral communication is a 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).
There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.
Example:
An offender admits to his role in a drug ring and agrees to allow police to record his telephone conversation with the ringleader to gather evidential material.
Example:
A CHIS agrees to wear a device that will record his telephone conversation with a gang leader who is under investigation for a series of armed robberies.
What is a tracking device?
Tracking device –
(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.
Although the use of a tracking device is considered to be less intrusive to an individual’s privacy (as it only reveals the location of a thing or a person in possession of that thing), the use of a tracking device requires a surveillance device warrant.
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.
Section 46 – Activities for which surveillance device warrant required
(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.
Situations of emergency or urgency
A surveillance device warrant need not be obtained for use of surveillance devices in some situations of emergency or urgency.
Section 48 acknowledges that in certain situations, police may need to act immediately without warrant to use any 1 or more surveillance devices.
Two key ingredients exist for any situation to be recognised as one of emergency or urgency.
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.
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:
• punishable by 14 years imprisonment or more and
•
• an Arms Act 1983 offence
− or a person by reason of their physical or mental condition (however
caused) is incapable of having proper control of the arms; or may kill
or cause bodily injury to any person;
− or that under the Domestic Violence Act 1995 a protection order or a
police safety order is in force against the person;
− or there are grounds to make an application against him or her for a
protection order.
• a drug offence; or
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 (section 14
