Crown vs Gown: PM On Police Surveillance

During last Monday's post-cabinet press conference the Prime Minister made the case that the police in the Urewera case had every reason to think the way they used hidden cameras was legal and the Supreme Court had overturned everything (as opposed to the police engaged in a legally reckless breach of their authority and the Government is now being forced to cover for it):

KEY: Actually, Parliament relied very heavily on the ruling of the Court of Appeal. I read a number of those judgments that the Crown Solicitor provided for me on Friday and those judgments for the Court of Appeal were very clear that video surveillance was admissible and we had no particular reason as a result of those decisions, and the common law rulings of the last 15 years, to consider that to be anything other than a lawful position.

Scoop's ears perked up at this because Scoop had recently seen the relevance of a couple of the Court of Appeal judgments questioned. Scoop had their names written at the top of its notebook: R v Fraser and R v Gardiner:

Legal blogger Steven Price (along with Andrew Geddis and Dean Knight) had been blogging about the Supreme Court ruling:

[The Police Association's Greg] O’Connor is fond of citing the cases of R v Fraser and R v Gardiner, as if those cases authorised installation of hidden cameras on someone’s private land during the execution of a warrant, and as if the Supreme Court has - shockingly - overturned them. But those cases didn’t say that. Both involved video surveillance of land from outside, with the consent of a neighbour...

That strikes me as thin gruel for a proposition that I think many people would find surprising: that the police had power to instal hidden cameras in our houses, just because they may have had the right to be there for some other purpose.

(Later, in the submission on the bill republished on his blog, Price and Felix Geiringer would discuss other precedents that have been cited – and some that don't seem to help the official case at all, including Entick v Carrington from 1765.)

Scoop is not a lawyer, but it seemed to Scoop that the unanamous finding of the Supreme Court (and the original High Court ruling) was that the police exceeded the terms of their search warrant and therefore there was a trespass – opinion divided was whether the evidence was admissible despite that.

SCOOP: This case was about placing hidden cameras on some else's property...

KEY: That's right.

SCOOP: ... without their knowledge or consent. Are you seriously saying that common law allowed that?

KEY: Yes.

SCOOP: And you think that's the way it should be going forward?

KEY: Well all I can say to you is I'm more than happy to provide you with the court rulings that came out of the Court of Appeal. It's very, very clear and extremely detailed in nature.

SCOOP: Were they not just about ordinary hidden cameras though?

KEY: No.

[...]

SOMEONE ELSE: So you would dispute the claim that police knew what they were doing was unlawful – are you saying they thought it was legal?

KEY: Oh, utterly, I'm happy to get you the Crown opinion it's a matter of public record... sorry, the case the Solicitor-General bought to me, but it's quite clear the clause absolutely says, in the judgment, that the've relied on this video surveillance and and it is admissible to the court.

SCOOP: But surely the whole Law Commission process and the Search and Surveillance bill process, that was indicating that there were problems in this area and it wasn't on solid ground?

KEY: Yup, but that's Law Comission's view in 2007, the Court of Appeal's ruling in 2009 was quite clear.

So, impressed by his certainty, Scoop decided to take the Prime Minister up on his offer to supply a "very, very clear" finding.

Scoop was all the more interested in testing the advice the leader of our country was getting on this matter when on Wednesday the Law Society objected to the proposed bill in part because "it misrepresents the legal position – both as it existed before the Supreme Court decision in the recent Hamed case and as it was determined to be in that case".

On Thursday evening Scoop received a response arrived from the Prime Minister's office:

I point you to the comments of the Chief Justice in the Hamed case (below) [the full judgment is on Scoop] - you may wish to read R v Fraser and R v Gardiner.

[29] ... “In R v Fraser and R v Gardiner the Court of Appeal took the view that unless police actions in undertaking video surveillance are prohibited by statute or otherwise constitute an actionable wrong such as trespass, they are lawful at common law.”

Scoop has yet to be directed to any "Court of Appeal's ruling in 2009".