Tuesday, September 20, 2011

Police powers and the law

It is around about now that the truth of what was behind the cancellation of charges against the Urewera 17 is coming to light.

That truth lies in a piece of legislation currently before the House, and being pushed through under urgency.

The legislation has the effect of allowing Police powers they as the law had interpreted them prior to a couple weeks ago; the date of the Supreme Court’s decision that the basis of much of the evidence against the Urewera 17 had been illegally obtained.

My understanding of the general position is this –

First, the Police have been obtaining evidence using covert (hidden) means including hidden video cameras and sound equipment (as distinct from the traditional wire-tap).

Second, the use or even the existence of these methods was not envisaged at the time the present legislation was enacted.

So the interpretation applied by the Police, supported by a number of criminal cases already concluded and appealed (two specific ones have been mentioned), has been that if it is not specifically prohibited then it is legal.

The Supreme Court case – the elephant in the bed – has turned that interpretation on its head. If it is not specifically authorised then it is illegal.

That really does follow White’s (from “The Once and Future King”) ants nest sign changing from “What is not Forbidden is Compulsory” to “What is not Compulsory is Forbidden”.

I have had one instance where my office was used by police for surveillance of a neighbour in some considerable secrecy. That was set up in accordance with a Court Order requiring that the use be provided and specifying the nature of the evidence to be obtained under the Warrant. Seems to me that is exactly the same situation as was followed in the case of the Urewera 17 except for one small but essential fact. In the latter case the consent of the landowner from where the surveillance took place was not sought. Why? For the very simple reason that they were the same people against whom the evidence was being obtained.

Now I can sympathise with the Police in the difficulties this may have caused in their process against the Urewera 17. That sympathy goes no way toward what I see as the centre of my personal objections to what happened.

First up, the police should be required to prove that there is substantial and legally obtained evidence that a crime has been or may be committed. That need not take place before open Court but it does need the Court’s hearing and consent. I do not believe that changes anything that already exists.

Second up, and irrespective of any charges that may subsequently be laid, that process must be revealed to the person(s) being investigated as part of the evidence in Court for resulting charges, or once the police have completed their investigation, or at the latest within a specified time period; I would suggest four years as a long maximum.

Third up, the process is required, essential, to prevent police indulging themselves in “fishing” for evidence against individuals without valid cause.

It comes down to this –

Whatever legislation the Government wishes to implement, governing the rights of Police to investigate and obtain evidence, must at all times be and remain subject to the New Zealand Bill of Rights Act 1990.

This dates back as far as June 2002 –

write further to my letter of 23 May 2002 in which I made a submission on Part
II of the discussion paper. This supplementary submission touches upon Parts III
and IV.

While I understand that [the Law Commission is] concentrating on search upon arrest I highlight two related issues in this context:· the merit from a privacy
perspective in delaying more intensive searches until the suspect in the
controlled environment of the police station (and I believe the philosophy of
[the United Kingdom Police and Criminal Evidence Act 1985] PACE s.32 is
consistent with this); and· if Police Act 1958 s.57A is to be amended, through
repeal of s.57A(5), it may also be timely to review the provision in total to
see whether it needs to be modernised to better protect peoples' rights,
including expectations of privacy, consistent with reasonable law enforcement

A general warrant?

In paras 30 and 31 [of the Preliminary Paper 50] the case for a general warrant for investigative techniques is raised. One example is given of a real New Zealand case involving 6 months of Police video surveillance into a person's home through a kitchen window. The merit of a warrant process authorising such intrusive surveillance by warrant for the Police is that the risk of the evidence gathered being declared inadmissible is minimised. The merit from a civil rights and privacy perspective is that the Police must initially justify their case to an independent person and, if the surveillance continues for an extended time, the Police will have to return to the judicial officer to maintain the justification. Conditions can be imposed to minimise the impact upon the suspect and other persons. The Commissioner has
formally recommended that consideration should be given to establishing a judicial warrant process in relation to the use of covert video surveillance in the investigation of offences (Privacy Commissioner, Necessary and Desirable: Privacy Act 1993 Review, 1998, para 2.6 and recommendation 22).

Accordingly, the Privacy Commissioner welcomes exploration of the idea.

However, wherever possible the legislature should expressly consider the means of investigation and craft statutory safeguards warranted by the nature of the technology and the intrusiveness of its application. It has done this in the past in relation to search warrants, interception warrants, call data warrants and computer access authorisations. In such crafted legislation the judicial warrant forms part of a
wider scheme of safeguards rather than the sole protection (e.g. in relation to offence provisions, absolute prohibitions on certain practices with standard conditions on certain others, information retention and destruction, record keeping, notification, audit, compensation, public reporting etc).

That analysis is a good and fair analysis of just how I have always seen the handling of the investigation, charging, and judicial fallout from the Urewera 17 case.

He concludes -

Accordingly, any proposal to claw back the protections in s.21 by omitting reference to unreasonable search, and placing the emphasis only on unlawful search, will make the NZBORA even less effective as a partial implementation of the universal human right of privacy. Tinkering with the Bill of Rights is rare.

Perhaps doing so offers the opportunity to consider including a new article modelled upon Article 17.

It seems clear from Scott Optican's review of the case law ("What is a 'search' under s.21 of the New Zealand Bill of Rights Act 1990? An analysis, critique and tripartite approach" 2001 NZ Law Review 239) that a central role of judges in the cases under s.21 is to adequately protect privacy. Investigative conduct which can breach reasonable expectations of privacy is frequently likely to be raised by surveillance activities involving no trespass of the traditional kind. If reasonable expectations of privacy are to be protected at all in this area it is undesirable to simply look at the
question of lawfulness in terms of trespass. To limit the section the manner canvassed in the paper would presumably diminish legal protection of privacy.

That would not be supported by the Privacy Commissioner.

Finally, the discussion paper focuses solely upon the use of s.21 in court proceedings,
particularly in challenging admissibility of evidence. For example, para 37 suggests that the reference to unreasonableness ceased to be useful when the Bill of Rights was rewritten so that the courts could not strike down statutes.

However, the NZBORA is also used as a standard in guiding officials who propose, develop and scrutinise new laws including those laws that empower officials to carry
out searches and surveillance. If the test were simply to be lawfulness the mere enacting of a statute conferring such powers would essentially end the matter. It is also useful that there be scrutiny of the reasonableness of such laws. Although such scrutiny could be undertaken in the absence of the NZBORA, the fact is that one of the NZBORA's major current roles is as a standard for pre-legislative scrutiny of bills.

For me, the difference lies between on one hand the police using private cctv footage to obtain evidence in investigating a crime committed, and on the other the police using the same cctv footage to track and monitor individuals who may not have been involved in the commission of any crime.

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